Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

Orders of the Day — FREEDOM OF PUBLICATION (PROTECTION) BILL

As amended (in the Standing Committee), considered.

Mr. Speaker: I have published my list of selections. The first is new Clause 1, with which I suggest we take Amendment No. 13, to leave out Clause 7, for which it seems to be a substitution.

New Clause 1

VARIATION OF DAMAGES

Where, in an appeal against a judgment or order in an action for libel tried by judge and jury, the appellant appeals against the amount of damages awarded, any appellate court shall have the same power to vary the amount of the award as if the trial had been by judge alone.—[Mr. Eyre.]

Brought up, and read the First time.

11.5 a.m.

Mr. Reginald Eyre: I beg to move, That the Clause be read a Second time.
I wish to explain the contents of the Clause by reminding the House that the purpose of the Bill is to assist the Press, radio and television in their task of giving improved publication in matters of public interest. This is particularly so in the exposure of widespread frauds which have caused such grievous loss in recent years to thousands of small savers and insurers. It is, therefore, very desirable that the Press should be able to give warning to ordinary people of developing dangers in transactions of this kind.
The Press, both local and national, deserves great credit for the way in which it tries to serve the public in this respect, but the Press takes great risks in carrying out that duty, and we should ask

ourselves whether the balance of risk is fair in this respect. One of the elements which make up the balance is the measure of damages awarded in libel cases. Of course, a person responsible for defamation must pay adequate and proper damages, but the amount of damages should be compensatory and not penal.
In its original form the Bill proposed that damages should be decided by the judge alone, but, having listened to the speeches of hon. Members on Second Reading and in the Standing Committee where the Attorney-General, despite his customary skill and charm in debate, was defeated on his Amendment, even though on this occasion by the casting vote of the Chairman, I am still persuaded that the original proposal was not the best solution to the present difficulty.
It interested me that in Standing Committee the Attorney-General argued that since 1965 no excessive damages had been awarded by a jury in cases of this kind; but, on the other hand, it is clear that in some cases decided in the years immediately prior to 1965 excessive damages had been awarded in cases involving juries, as the subsequent decisions of the Court of Appeal have made perfectly clear.
The disadvantage of the present system is that if the Court of Appeal finds that there is substantial error in the amount of damages awarded—that is, if the jury have got it wholly wrong in this respect—the Court of Appeal can only order a new trial with all the expense that so unreasonably follows for the parties involved in the case.
The danger also is that a new trial could result in the same silly decision as to the measure of damages by a new jury. That is why, in this proposed Clause, I have provided that the Court of Appeal shall have the same power to vary the amount of the award as if the trial had been by judge alone. I submit that this Clause strikes a proper balance, and, in response to the persuasive arguments, the present functions of the jury have been retained but the power of the appellate court would enable a just and fair sum of damages to be fixed, with the avoidance of the cost of a new trial.
I am encouraged in putting forward this Clause by the approving tone of the


remarks which were made by the Attorney-General in Standing Committee when this matter was debated in detail and when I made some reference to a possible change in the proposal along these lines.
I trust, therefore, that he will give his approval to the Clause which, I believe, would considerably improve the present position.

Mr. Donald Dewar: One of the difficulties confronting me in this debate is that the Bill as framed affects the United Kingdom as a whole, but there are several questions in regard to which rather separate considerations and arguments apply to the law in Scotland. This question is one such.
I understand that civil jury trials are comparatively rare in England. This is by no means so in Scotland. At present civil jury trials are generally obligatory in Scotland, and certainly very common in all actions of reparation, that is, all actions arising out of personal injury, and they can be avoided only by the consent of both parties or if there is some special reason such as long delay or the existence of difficult questions of law which makes a case unsuitable for consideration by a jury.
This question has been considered recently in Scotland. The whole matter of civil jury trial was investigated in 1959 by a Departmental Committee sitting under Lord Strachan, one of the senators of the College of Justice, the Report having been issued under Cmnd. No. 851. That Committee, I understand, received representations from many sources, including representations which largely followed the pattern of this new Clause.
However, Lord Strachan's Committee—this ought to be stressed—was unanimously against making such a change in the law of Scotland. It was of opinion that
To allow an unrestricted review of questions of evidence and the quantum of damages would simply be to allow the Court to substitute its own judgment for that of the jury in all cases. If that were permitted there would seem to be little purpose in having a jury trial at all.
That is a powerful argument.
Clause 7 of the Bill as originally drafted would have removed the jury's right altogether. The sponsor has re-

treated from that in face of, I think, the general impression that this is a suitable matter for a jury's deliberation and it would be wrong to remove it altogether. The new Clause, however, would extend an open invitation to the Court of Appeal, the higher court, to upset the jury's decision. In some ways, I should almost prefer a straight argument on the first proposal, because then we should have a clear-cut question to decide: should the matter be left to a jury or not?
Under the new Clause, however, the effect would be to say to the jury, "We shall leave you power to decide damages in these cases, but we shall remove from you the final decision". In my view, if this is a suitable question for a jury, it is one which ought to be decided by the jury, and I am not convinced that the proposed halfway house is suitable.
I recognise that there have been criticisms of the present situation from the judiciary when courts have to send cases back for a new trial. There was a fairly widely publicised case in Scotland recently McCallum v. Patterson, in which the second jury also awarded damages which were found by the higher court to be grossly excessive. But I can only imagine that that must be a remarkably unusual circumstance, and, normally, if the Court of Appeal were to say that it found the damages grossly excessive, this opinion would give enormous impetus to the parties to negotiate out of court for a settlement.
If it is made perfectly clear in the judgment handed down that the figure is too high, and the reasons are given, one would expect in almost every case that the expense of a new trial would be avoided by the parties putting their heads together and coming to a mutually agreeable figure in order to avoid the outcome.
However, if the case does go to a new trial—if there is no settlement even though that sort of pressure has applied—there may well be a case for saying that, if the jury does after all reach the same decision, we should follow our rule of trusting a jury and leave it to decide the matter, expressing, in effect, its opinion that the judges were wrong. A good many people might argue, with reference to the case I have mentioned, that judges are being less than generous, underlining the unfortunate tendency,


perhaps, in Scottish law at the moment to award sums of damages which are much lower than those commonly awarded by the courts of England.
In view of the very careful consideration given to this matter by Lord Strachan's Committee and the unanimous opinion which it reached, and in view of the effect of the new Clause which, as I say, would seem to say to the jury, "We shall leave you power, but, at the same time, we shall extend an open invitation to have your judgment overruled, I am strongly of opinion that it would not be right to approve the Clause.

11.15 a.m.

Mr. Mark Carlisle: I support my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre). I welcome his new Clause and his change of mind. There are not many parts of the civil law today in which one still has jury trial, though, as the hon. Member for Aberdeen, South (Mr. Dewar) said, the sphere is rather wider in Scotland than in England. However, I believe that the general area of libel, slander and defamation is one in which a jury should be used. There is probably no better tribunal to assess whether a person's reputation has been damaged than a group of his fellow-citizens.
What worried me about the Clause as it first stood in the Bill was that it seemed to leave trial by jury open, but then removed entirely from the jury any assessment of damage. I do not think that we ought to have this half-trial by jury and half-trial by judge. If there is to be trial by jury, it is right that we should trust the jury in the first place at least to assess the damages, and I am glad that this is to go back into the Bill.
There is no doubt, however, that a limited problem does arise occasionally when a jury, perhaps through unfair prejudice, appears to go berserk in the amount of damages it awards. However serious an attack on a man's reputation may be, one cannot seriously justify giving to a person who has been put into a wheelchair for life, who has become a paraplegic or tetraplegic, the sum of, perhaps, £40,000, and, on the other hand, giving another man, say, £100,000 in damages because somebody has made a comment about him, although he has

been cleared in the judgment. There have been examples showing where the balance between damages awarded for personal injury and damages awarded in a libel action have been wholly out of proportion.
It is right, therefore, that the court of appeal should have power to vary an award of damages when it considers that it is grossly out of proportion.

Mr. Dewar: As the hon. Gentleman is arguing, basically, for the retention of the jury's rights in this matter, will he accept that a berserk jury, to use his own expression, would only very rarely be encountered and, therefore, it would not be unreasonable to say that in those circumstances there ought to be a new trial?

Mr. Carlisle: I agree that it will not happen often. I myself spoke of the problem as limited. To remove the question entirely from the jury would be to go unnecessarily far in trying to deal with that limited problem, but I cannot see the argument in favour of a new trial. We trust our Court of Appeal to interfere from time to time in the assessment of damages. I do not see why it should not have power to do so in libel actions, where it considers that a jury has gone completely berserk, just as it can in any other action.
In practice, they do not change the award just because it is not the amount which they would have given. They interfere only if they believe that it is completely out of proportion. They would surely take the same attitude in libel actions: they would say, not, "It is £2,000 more than we should have given, so we will reduce it," but, "This is so out of proportion that we will interfere," or, "It is slightly generous, but not such that we should interfere."
This will not lead to many more appeals or interferences with the amounts which juries give, but, in the occasional case when a jury acts out of proportion, it will allow the Court of Appeal to interfere to save the additional enormous cost of a retrial, and substitute a fair figure. I am, therefore, pleased that my hon. Friend has rewritten this part of the Bill. I welcome the new Clause and, perhaps naïvely, hope that the fact that the Attorney-General has his name to Amendment No. 13, to leave out Clause


7, shows a desire to facilitate the passing of the new Clause and is not just part of a general campaign to leave out every Clause.

Mr. Edward Lyons: I, too, welcome this change of mind by the hon. Member for Birmingham, Hall Green (Mr. Eyre), and I congratulate him on his new Clause.
What is not always apparent to those discussing defamation is that the Legal Aid Act does not cover assistance in defamation cases. That means that anyone who takes on a newspaper does so unaided by the State, and usually by any other agency. If a man had been severely libelled and the jury decided on improperly small damages, it would be an intolerable hardship on the plaintiff to risk all again—also unsupported—on a new trial.
The law of defamation is a jungle even to lawyers. It is a branch of the law where it is easy to go wrong, with many peculiar rules. It is therefore expensive to litigants and it is a good notion to allow the Court of Appeal to vary awards of damages by juries.
Other reasons make the Clause a good one. There is a pressing need for standardisation of damages in all types of cases. This process has begun in recent years in connection with employers' liability cases. It is only recently that books have appeared showing records of damages in particular injuries. It is unfortunate that no judge would regard damage awards by juries as setting a standard for him to follow, but, in some cases, if he saw that the Court of Appeal has made certain assessments, that would be a guide for him and for advocates in urging juries one way or another in defamation actions.
Anything which will produce a body of rational case law on the award of damages for libel and slander actions is a good thing; for that reason, I support the new Clause.

Mr. Eldon Griffiths: I support my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre). Although I supported my hon. Friend enthusiastically throughout the Committee stage, on this point I had some reservations which he has now satisfactorily cleared up.
The present system by which a jury determines damages has some conspicuous disadvantages. On the whole, juries tend to assume that all newspapers have vast resources and can meet heavy damages. This is not so. There have been cases in which excessive awards have come close to driving publications out of business. This cannot be in the real interests of the Press or of justice. Also, juries are inconsistent, and sometimes produce diverse damages between different parts of the country and at different times, depending on the state of public opinion. In both these matters, the new Clause would meet my reservations.
It would have another important advantage. Smaller publications on that very narrow margin between profit and loss may be put at risk, even thrust close to bankruptcy, by the delay which can arise between one jury trial and another. Very often, when a small publication has difficulties in meeting its labour, printing and paper bill, the delay and the risk of heavy damages for a long period tends to make its creditors, advertisers and even readers shift away. So this delay could ruin the publication.

Mr. Alexander W. Lyon: Would the hon. Gentleman give us some examples of newspapers brought to ruin by delay?

Mr. Speaker: Order. It would help the Official Reporters if the hon. Member would speak up. I myself did not hear him.

Mr. Lyon: I shall try to speak up, Mr. Speaker. I am sorry that I did not carry as far as the Chair.
I was asking the hon. Gentleman for some examples of the kind of publication which has gone out of business because of a delay between the hearing of the appeal and the hearing of the action on the question of damages.

Mr. Griffiths: One case that I have in mind is a damage award against the Spectator, I think, many years ago, which, at the time, came close to pushing the Spectator out of business. I am not sure, but I think that the damages were about £20,000. The new Clause will remove this risk of delay damaging a publication's prospects of continuing in business. I am, therefore, glad of it. It


improves the Bill, and I hope that the Attorney-General will accept it.

11.30 a.m.

Mr. Alexander W. Lyon: In what I hope is more than a sibilant whisper, I want to say that although I do not oppose the new Clause with the intention of voting against it I have a somewhat less warm welcome for it than some previous speakers. I have never been impressed by the Press campaign on the notion that newspapers are intimidated by high damages given by juries in libel actions.
Any kind of analysis of the record of jury actions since the last war indicates that in only a very few cases, one of which was the John Lewis case, was the award of damages so outrageous that the Court of Appeal wished to interfere. In fact, in those cases—it was the House of Lords in the Lewis case, but the Court of Appeal in other cases—the Court of Appeal has intervened and sent the case back for a revision of damages.
I do not greatly welcome the provisions of the Bill dealing with defamation, nor do I particularly welcome the new Clause. If the Bill had remained in the form in which it was when it came out of Committee, I would have supported the Attorney General in seeking to delete the Clause which took away from the jury the power to award damages at all.
One of the dangers in the English legal system in the award of damages is that the jury does not interfere sufficiently in estimating the amount of compensation which ought to be paid in damages. It is a great regret to me that we do not use the jury more in ordinary civil proceedings for negligence, or running down cases, or for factory cases.
If the jury were more used in such cases, I very much doubt whether the award of damages would now be so low in comparison with continental countries. It is largely because members of the bench take a very conservative view about the kind of compensation which is adequate in modern times for any kind of jury.
In personal injury cases there is some kind of notion of computation. One can work from the basic figure of loss of earnings and add to it an educated guess about the kind of damages which would

compensate for pain and suffering. But in defamation cases it is practically impossible for the judge to assess the measure of damages to meet the real loss of reputation and injury to feeling which is occasioned by defamation. The bench is bound to expect to receive considerable guidance from juries.
I disagree with hon. Members who have said that juries are inconsistent and that their awards vary so greatly. Juries, on the whole, run within a fairly reasonable measure of damages and only exceed that measure when the damage done to the reputation of the plaintiff is considerable.
This is worse in the case of the Press or other mass media than defamation by an individual, precisely because the defamatory matter has been reproduced to a wide audience. It is in the case of the Press that the judge, if he is to award damages, or a jury as now, will wish to award damages on a considerable scale.
It may be that, even with the new Clause in the Bill, the Court of Appeal will rarely wish to intervene. In those circumstances, I would not wish to see the power withdrawn from the Court. It can still have the power to order a new trial. It does not exclude that power, but it gives the Court an additional power, if it wants it, to assess the damages, a power which, I suggest, the Court will use sparingly.
I add a note of warning to all those gleeful newspaper editors who think that this might be one way of diminishing the importance of the jury. My own understanding of what happens after the Court of Appeal says that an award is too high, in the rare case where that occurs, and sends back the case for a new trial, is that almost invariably the matter is settled.
The case is settled with the plaintiff recognising that, if a cut is made in the award of damages by the jury in a new trial, that cut might exceed the expectations which he might have achieved in negotiations. Therefore, he frequently settles for a figure which might be higher than he would get from a jury, or might be lower. On the whole, the figures tend to be higher than a plaintiff would expect from a jury coming fresh to the case. That was the situation in the Lewis case.
It does not follow that because this power exists even though it might save costs and ease the economic pressure on newspapers, to which the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) referred, it does not necessarily follow that there will be a lower amount of damages by reason of the matter being dealt with by the Court of Appeal. The Court might well give an award higher than that which could be obtained on a settlement.
Although I am basically indifferent to whether or not the Clause should go through, I would not oppose it.

Mr. Simon Mahon: I should like briefly to add my voice to that of my hon. Friend the Member for York (Mr. Alexander W. Lyon) in sounding a note of caution. I wish to ask the Attorney-General to tell us how the new Clause would affect an individual.
Those of us in the House who are non-lawyers enter into a legal debate with trepidation. But some of us have a good deal of experience of newspapers. Many of us have felt that at times we have been libelled in our public life, as other people have been libelled in their personal lives, by newspapers. For one reason or another we have not been able to have recourse to law—

Mr. Speaker: Order. I know that the hon. Member has a keen interest in this Bill, but at the moment we are discussing only one Clause.

Mr. Mahon: I am aware of that, Mr. Speaker. I have an interest in the Bill in that I want to protect the individual from the effect which the Clause might have.
It appears to me to give the right to a judge alone to do what now a jury does. As an ordinary layman, I am asking the Attorney-General to give to me and to other non-lawyers in the House some clarification. There is a great divergence of opinion in the House on this Clause.
I should like to support the Clause. I have discussed it with people outside the House, but I should like to have from the Attorney-General the assurance that individuals would be protected, as they are at the moment, by the present

law. I hope that we shall not be taking a backward step if we allow the Clause to go forward.

Mr. T. L. Iremonger: I give only qualified and regretful support to the new Clause, because I regret that Amendment No. 13, which we are discussing with the new Clause, seeks to delete Clause 7 from the Bill, which I feel to be the best Clause in the Bill. It provides that in all libel actions the amount of damages should be decided by the judge alone.
As I understand, the new Clause now takes away that provision and substitutes what is perhaps better than nothing, but not as good as the situation as it was previously, namely, that where a person appeals against an award of damages given by a jury the Court of Appeal shall be able to vary the amount of the award as though it had been made by a judge alone in the first place.
The defendant in an action for libel, the appellant as we consider him under the new Clause, will be put in the position at the very least of having to risk the astronomical expense of an appeal, and he is not relieved of the great disadvantage that I have always maintained he suffers when he is liable to have the damages in an action for defamation decided by the jury.
I speak from vicarious experience, more sharp and painful than any experience at first hand, in that the person who matters most to me in the world was the victim of an action for libel which had to be settled on terms which everyone recognised to be a travesty of the truth, by a statement in court and an apology.
Counsel said that it was a classic case of fair comment in the public interest, and that it could and should be defended, but that juries were so prejudiced against newspapers that there was risk of having to pay a sum which made it not worth defending the action. This was just after the Lewis case. So counsel advised that it was far better to settle.
That is a very bitter pill to have to swallow. The case was struck from the record. The prospective plaintiffs were 134 valuation officers of the London County Council, who took exception to an article by a member of that council criticising the policy whereby local


authorities used their own employees to assess the amount of compensation to be paid for property which the employing authority was compulsorily acquiring.
I do not want to be out of order. The details of the case are immaterial, but the fact is that on any fair assessment, had this not been a matter which a jury would have had to decide, with a newspaper as one of the defendants, this was a proper criticism of its policy.
It happened, I think for political reasons, that the members of the department chose to say that in the criticism of the policy of the local authority and many other local authorities the professional integrity of the officers employed to carry out that policy was being attacked, and they demanded £1,000 damages.

Mr. Speaker: Order. With respect, we cannot re-try a case on the Amendment.

Mr. Iremonger: As I said, Mr. Speaker, I do not wish to be out of order.
But because a jury was involved and was said by leading counsel to be bound to give a biased award of damages against a newspaper the action had to be settled in circumstances in which all equity and justice demanded that it should be defended. Therefore, I am sorry to see Clause 7 go out of the Bill as a result of Amendment No. 13. This will mean that many defendants who should defend will still be obliged to settle.
As regards the whole law of defamation and the award of damages, it seems to many people that one can hardly reconcile the fact that a private individual, especially when carrying out a public duty, is in jeopardy to the tune of thousands of pounds, with the situation in the criminal courts.
People guilty of offences involving cruel, calculated, mean and vindictive acts, causing genuine suffering and physical hardship to others, get away with suspended sentences and fines reckoned in terms of pounds, while in defamation cases, in which the damage, if any, is purely putative, the damages awarded frequently run to thousands of pounds. Those guilty of serious criminal offences would never be subjected to them in a

thousand years; my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) knows well that he never imposes fines running into thousands of pounds on criminals in the recorder's court.
Since the law of defamation bears so hard on people who may be attempting to make proper public criticism, it is quite wrong to take away the protection given by Clause 7 by removing them from the hazards of the arbitrary and capricious judgments of a jury. I very much regret it, but the House is obviously disposed to accept Amendment No. 13, and new Clause 1 at least proposes going some way towards remedying what seems to me a very serious defect in the law.

11.45 a.m.

Dr. Ernest A. Davies: I understand from the promoters of the Bill that one of their major objectives is to give newspapers and other media opportunities to expose public scandals and matters of that kind more easily than they can at present. In that sense, I can understand that it is very easy to interpret that an action for libel is always likely to arise between quite powerful bodies, organisations or rich individuals, and the newspaper against which the action is brought.
Bearing that in mind, we can see that it is a very attractive proposition that the judge would be in a sense an umpire between two powerful and conflicting forces, weighing and balancing the whole matter in a very objective way before arriving at a notion of what damages should properly be awarded, if there is a case for awarding damages at all.
When the matter is viewed in that light, Clause 7 seems to embody quite an attractive idea. But those will not be the only circumstances in which awards of damages would be decided by the judge under Clause 7, which Amendment No. 13 proposes to strike out. An individual or small group of people whose means and assets in no way compare with those of a newspaper either in terms of influence or cash might well be involved in an action for libel.
Therefore, I wonder whether the analogy which has been drawn between the judge acting in his objective capacity as a kind of referee and, say, a doctor


making an assessment of a person's loss of earning power, is appropriate in the circumstances.
It is easy to see that if a person has suffered a physical injury a medical expert could say, "The injury is so-and-so. We know from experience that with this kind of injury this person's earning capacity will have been reduced." It may then be possible to arrive at an objective assessment of what damages should be awarded to compensate for that loss of earning capacity.
But in cases of the kind we are considering it is not a simple question of loss of earning capacity but damage to a person's character or standing in society. I do not think that it is possible or desirable to put the entire weight of deciding such a matter on the shoulders of a judge, who, by the nature of his profession, is perhaps to some extent set on one side away from the ordinary comings and going of the rest of us.
Yet it is precisely in the eyes of the rest of us that the character and the standing of the individual making the complaint has been damaged. Therefore, it seems to me that what we want is some kind of reaction, not from the judge set aside in his high place of judgment but from a cross-section of our fellow citizens.
In the case of an individual who has suffered at the hands of a newspaper or a broadcaster, it is surely a group of our fellow citizens who, having seen or read the item complained of, are better able to say, "This is what we would have thought of this man if having read this material, we assumed it to be true. This is how he would have been lowered in our estimation. This is how we would have thought his character would have been lowered and damaged", and therefore, taking into account their own experience in society, they would as a body be able to arrive at a general judgment about what the impact of the defamatory material would be on the character and social standing of the person involved.
It follows from that general line of argument that if they are able to understand the impact on the individual, then, equally, as representatives of society, they are better able to say what they think would be fair compensation, be-

cause as ordinary members of society they are able to put themselves into the shoes of the other person and say, "This is how badly we would feel about it". It is on this basis that they would be able to say, "If we, as ordinary citizens, were caught up in circumstances as unfortunate as that, we would prefer not to have this important element of the case rest in the hands of a learned judge, but would rather have the matter dealt with by our fellow citizens who we feel would understand our position much better and much more adequately than a judge might, despite the fact that if he were ever placed in a position of having to do so he would bend his best judgment to it".
This is a matter which ought to reside with the jury if possible. Therefore, although at first sight Clause 7 held certain attractions, when I considered its impact on an individual caught up in those circumstances I came to the conclusion that it did not seem to be acceptable, and, therefore, I support the Amendment No. 13. By virtue of the same argument which could be extended to deal with the new Clause, I do not feel able to support it.

The Attorney-General (Sir Elwyn Jones): I am glad that in a belated act of conversion the sponsor of the Bill has decided to support the deletion of Clause 7, that being a Clause which provides that in all actions for libel the amount of damages awarded shall be decided by the judge alone. In my view, juries are indispensable in serious criminal cases, and of considerable value in civil cases where the character and reputation of the individual citizen may be at stake. I think that they are the proper tribunal to decide what a defamed and libelled citizen should get by way of damages if he has been libelled.
That seems to be the view which has most support in the House this morning. It was not the view which was held, or appeared to be held, by the Committee upstairs. I say, "appeared to be held", because there were present on that occasion six Members. The vote was three on one side, and three on the other, and the remarkable situation arose that the hon. Member for Ebbw Vale (Mr. Michael Foot) found himself able to support the Attorney-General.
But this, clearly, must have caused a good deal of confusion, because I observe from HANSARD that it is not the name of my hon. Friend the Member for Ebbw Vale which appears as supporting the Attorney-General, but that of the right hon. and learned Member for Ipswich (Sir Dingle Foot), with whom I understand the hon. Member has some association. So it came to pass that it was the casting vote of the Chair which retained Clause 7.
We can now look at the matter afresh. I note from the new Clause that the sponsor's conversion to the view that the jury is the best tribunal for deciding what the damages ought to be in a libel action is not a total one, because his Clause wants to give to the Court of Appeal power to substitute its own estimate of damages for the jury's estimate.
Although it is the case that the Court of Appeal has general power on appeal from a judge sitting alone to substitute for his award of damages the award of a sum which the Court of Appeal considers appropriate, in practice, as I think one of my hon. Friends has said, it does not appear that the Court of Appeal readily exercises this power in libel actions. It has done so on a few rare occasions.
For instance, there was one case, Dingle—no relation to my right hon. and learned Friend the Member for Ipswich—v. Associated Newspapers, in which the Court of Appeal substituted its own award for that of a judge's, but it was apparent from the judge's judgment in that case that he had taken into account in mitigation of damages matters which were irrelevant.
Then, in Fielding v. Variety Incorporated, the Court of Appeal again substituted its own award for that of the judge's because it appeared that the judge had wrongly included a punitive element and miscalculated a pecuniary element in the case Those judicial errors were apparent by and from a reading of the judgment of the learned judge.
The difficulty with a jury's verdict is that it does not reveal all the factors which the jury took into account, or really how they arrived at the sum of damages they awarded. Merely to give

the Court of Appeal the same power to vary the award as it has in the case of a judge's award may not really be sufficient to achieve the object which the hon. Member for Birmingham, Hall Green (Mr. Eyre) has in mind. As the Court would not be able to see where the jury had gone wrong, it would be very difficult for it to estimate what the award would have been if the jury had not gone wrong.
Accordingly, the Court of Appeal might feel that, notwithstanding the new powers which the Clause proposes to give it, it would still have to remit the question of damages to a fresh jury. If the hon. Member's purpose is to be achieved, it might have been better to provide in terms that the Court of Appeal was to have power to substitute for a jury's award the amount which it considered appropriate.
12 noon.
However, I regret to say that, after giving careful thought to this matter, I do not find the new Clause attractive or one which I can commend to the House, although I readily agree that there are arguments for making the change. In my view, they are not as strong as the arguments against. The most powerful argument for making the change has already been made, namely, that new trials are expensive and lead to delay. The substitution of a different award by the Court of Appeal would undoubtedly shorten the litigation and reduce the costs.
Unhappily, that costs in libel actions are high is notorious. Indeed, this was recently the subject of adverse comment by Mr. Justice Blain in connection with the recent action against The Times Literary Supplement. While I am mentioning that, the House may be interested to know, lest some hon. Members may think that juries award damages far higher than a judge is likely to award, that in that case he awarded £7,000 damages against The Times Literary Supplement whereas, as I said in Committee, there was no award by a jury of a sum greater than £5,000 in all the years from 1964 on. If the Press thinks that having a judge alone deciding damages necessarily will result in the award of a lesser sum, that is not a conclusion which it would be safe to reach.

Mr. Eldon Griffiths: Those of us who are supporting my hon. Friend are indifferent to whether on appeal the damages would be higher or lower. We are not concerned to protect the Press from proper damages. The issue here is that a judge is in a position to assess the real financial position of the publication and therefore to award damages which would have regard to their effect on the publication.

The Attorney-General: The hon. Gentleman made the same point in Committee. He thought that it was vital in the assessment of damages that the tribunal should be equipped to take into account the slenderness of some newspapers' resources.
The fallacy underlying that argument is that it presupposes the true measure of damages to be the amount by which the defendant should be penalised, whereas the reality of the award of damages is the extent of the plaintiff's injury. There is no doubt that in practice neither jurors nor judges entirely shut their eyes to the wealth of a defendant newspaper, and it may well be that against one of the great national newspapers higher sums should tend to be rewarded.
But the logic of the hon. Gentleman's approach is that if a newspaper is impecunious, it may destroy the character of the citizen with impunity and somehow be immune from a proper sum of damages which would reflect in the tribunal's mind the damage which the plaintiff had suffered. His line of approach, in effect, would be that a newspaper existing on a shoestring could publish serious libels with comparative impunity. That may be taking his argument a little further than he intends, but those are the implications.

Dr. Ernest A. Davies: The way in which my right hon. and learned Friend has dealt with these arguments appeals to me strongly. Perhaps he will agree with me that it might be possible for a publication not just to have destroyed a man's character or social standing, but thereby to have rendered him bankrupt. We would then have the curious situation that when damages were being awarded, consideration would have to be given to whether a newspaper itself might suffer

serious financial harm, rather than the individual. Further—

Mr. Speaker: Order. I must remind the hon. Member and the House that we are on Report stage. The hon. Gentleman has made a speech. He may not make a second disguised as an intervention.

Dr. Davies: In that case I will move quickly to my final comment. In the Bill there is no definition of a newspaper. Would my right hon. and learned Friend care to comment on what would happen if the libel involved simply a leaflet and not a newspaper?

The Attorney-General: I am grateful for that intervention, which underlines what I was seeking to say.
I have little doubt that in practice a jury would bear in mind some reasonable consideration if an obviously great newspaper with masses of resources behind it were the defendant, as compared with a newspaper of lesser circulation. That factor seems one to which a jury of reasonable men would be able to give proper consideration.
In the assessment of damages, the right to trial by jury in libel actions is justified on many other grounds. The fact is that the assessment of compensation for injury to reputation is not a matter of careful statistical analysis, or of comparison with similar injuries and awards in similar cases brought by other persons. There is no kind of tariff in defamation cases as there is in personal injury cases.
I think that trained lawyers are not necessarily better qualified to assess reasonable compensation than laymen and that 12 ordinary men and women are just as capable of making a good job of it as is a trained lawyer. After all, since Fox's Libel Act of 1792 it has been thought that juries are the better instrument for carrying on this task, and now that juries are better educated than they have ever been, they are at least as well equipped now as they have ever been to perform this task.
The Court of Appeal, of course, is more qualified to decide that an award may be wrong in principle, but it does not follow that a jury is less qualified than the judge himself to decide the right


award. In considering this matter, I have been impressed by the observations of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), namely, that this precise issue was considered 10 years ago in Scotland by a Departmental Committee under Lord Strachan. It went into this very issue in considerable detail and with much care and was unanimously against the proposals contained in the new Clause.
As has been said, it was of the opinion that to allow an unrestricted review of questions of evidence and the quantum of damages would simply be to allow the Court of Appeal to substitute its judgment for that of the jury in all cases. If that were permitted, there would be little purpose in a jury trial at all.
In all the circumstances, and although I see some merit in the new Clause, the law as it stands is, in my view, reasonably satisfactory and I think that the new Clause should be resisted.

Mr. Eyre: With the leave of the House, may I make it clear that my Amendment No. 13, relating to Clause 7, is consequential on the assumption that this new Clause would be successful and that Clause 7 should then be removed to make way for it? I therefore trust that, should the new Clause be rejected on a Division, I should be in order in withdrawing Amendment No. 13, which is in my name, and thus restoring the Bill to its original form.

Mr. Speaker: It is a tricky point of order. It is not only the hon. Gentleman's Amendment. Once it is on the Notice Paper, it is before the House. He can withdraw it if the House gives permission. What he might have to do, in the unhappy event which he seems to foresee, is to vote against his own Amendment.

Mr. Carlisle: On a point of Order. Has that Amendment been selected? I thought that it was only for discussion, Mr. Speaker.

Mr. Speaker: The hon. and learned Gentleman may not have been here when I said that it was selected for discussion with this amendment. It does not have to be moved, but someone else can move it.

12.15 p.m.

Mr. Eyre: My intention was to put down an Amendment to Clause 7, but I was advised that, because of the nature

of that Amendment, it would have to appear as a new Clause.

Mr. Speaker: I am not unsympathetic to the hon. Member's point, but I can only rule on order. If the new Clause should be defeated, the hon. Gentleman's intention would be that Amendment No. 13 was not discussed, so he would do his best to see that it was not discussed. But it is at present still before the House.

Mr. Eyre: I should not like to give the impression that I think that the reason of my argument would not be acceptable to the Attorney General and the House.
I apologise for my absence during part of this debate, at the Attorney-General's request. The general tenor, I understand of the remarks of the hon. Member for Bradford, East (Mr. Edward Lyons) and my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) was favourable. I understand that the hon. Member for Aberdeen, South (Mr. Dewar), however, had little confidence in the Court of Appeal and suggested that the members of that august body would usurp the function of the jury. I feel strongly that that would not be so. Deciding damages in libel cases is often very difficult.
When the hon. Member for Stretford (Dr. Ernest A. Davies) said that the damages should be decided by a cross-section of the population, he expressed a basic truth, but the record proves that, on rare occasions, the jury is wildly wrong. In support of that, I would quote from the speech of the Attorney-General on Second Reading of the Bill, He referred to Lord Denning having made it clear
… on several occasions both in the Court of Appeal and elsewhere, the Court of Appeal regards itself as having power to set aside an award by a jury if it is out of proportion to the circumstances to the same extent as an award by a judge. It is interesting that in a case in 1967 where the two plaintiffs had been awarded by the jury £4,000 each by way of damages the Court of Appeal ordered a new trial on the operation of damages and Master of the Rolls went so far as to suggest that a reasonable sum would not exceed £1,000 for each of the plaintiffs."—[OFFICIAL REPORT, 31st January, 1969; Vol. 776, c. 1735.]
The right hon. and learned Gentleman was, therefore, quoting evidence in support of my argument today.
Contrary to his view this morning, all evidence is before the Court of Appeal in dealing with the damages in cases of defamation. It is not like a case of


physical injury, in which the court cannot see the victim. In the past, the Court of Appeal has been able to put matters right when the jury has been wildly wrong. I regret that my hon. Friend the Member for Ilford, North (Mr. Iremonger) does not agree with the new Clause, and I understand his personal reasons for that view, but the general balance of argument favours it—

Mr. Iremonger: It is not that I do not agree with the new Clause: I am sorry to see the other one go and to have nothing better than this. But it is better than nothing.

Orders of the Day — ROYAL ASSENT

Mr. Speaker: I have to notify the House in accordance with the Royal Assent Act, 1967, that the Queen has signified Her Royal Assent to the following Acts:

1. Betting, Gaming and Lotteries (Amendment) Act, 1969.
2. Nuclear Installations Act, 1969.
3. Decimal Currency Act, 1969.
4. Foreign Compensation Act, 1969.
5. Immigration Appeals Act, 1969.
6. Redundant Churches and other Religious Buildings Act, 1969.

Mr. Eyre: I am obliged.
The general balance of argument favours the new Clause. That is, the decision is left with the jury, which should please the hon. Member for Stretford, whose basic argument I accept. The jury has to be corrected only if, in a difficult and technical matter, it is substantially wrong in the kind of case which the Attorney-General quoted on Second Reading. This is an improvement, because this operation would be done without the unnecessary cost of a new trial.

Question put, That the Clause be read a Second time:—

The House divided: Ayes 27, Noes 62.

Division No. 222.]
AYES
[12.15 p.m.


Bell, Ronald
Hunt, John
Prior, J. M. L.


Biggs-Davison, John
Iremonger, T. L.
Rhys Williams, Sir Brandon


Blaker, Peter
Legge-Bourke, Sir Harry
St. John-Stevas, Norman


Brown, Sir Edward (Bath)
Lubbock, Eric
Sharples, Richard


Campbell, B. (Oldham, W.)
Lyons, Edward (Bradford, E.)
Sinclair, Sir George


Carlisle, Mark
McNair-Wilson, Michael (W' Stow, E.)
Whitelaw, Rt. Hn. William


Cordle, John
Maudling, Rt. Hn. Reginald



Corfield, F. V.
More, Jasper
TELLERS FOR THE AYES:


Elliott, R. W. (N'c'tle-upon-Tyne, N.)
Mott-Radclyffe, Sir Charles
Mr. Charles Doughty and


Errington, Sir Eric
Orr-Ewing, Sir Ian
Mr. Eldon Griffiths.


Eyre, Reginald






NOES


Alldritt, Walter
Hoy, James
Moyle, Roland


Bottomley, Rt. Hn. Arthur
Hughes, Rt. Hn. Cledwyn (Anglesey)
Ogden, Eric


Bray, Dr. Jeremy
Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Oram, Albert E.


Brown, Bob (N'c'tle-upon-Tyne, W.)
Jones, T. Alec (Rhondda, West)
Paget, R. T.


Crossman, Rt. Hn. Richard
Judd, Frank
Parker, John (Dagenham)


Dell, Edmund
Kelley, Richard
Peart, Rt. Hn. Fred


Diamond, Rt. Hn. John
Lee, Rt. Hn Frederick (Newton)
Perry, Ernest G. (Battersea, S.)


Ennals, David
Lee, Rt. Hn. Jennie (Cannock)
Perry, George H. (Nottingham, S.)


Evans, Gwynfor (C' mart[...]en)
Lestor, Miss Joan
Rees, Merlyn


Evans, Ioan L. (Birm'h' m, Yardley)
Lyon, Alexander W. (York)
Roberts, Rt. Hn. Goronwy


Fletcher, Raymond (Ilkeston)
McCann, John
Shaw, Arnold (Ilford, S.)


Foley, Maurice
Mackie, John
Skeffington, Arthur


Fowler, Gerry
Mackintosh, John P.
Summerskill, Hn. Dr. Shirley


Freeson, Reginald
Mahon, Peter (Preston, S.)
Wells, William (Walsall, N.)


Gardner, Tony
Mahon, Simon (Bootle)
Whitlock, William


Harper, Joseph
Marquand, David
Williams, Alan (Swansea, W.)


Harrison, Walter (Wakefield)
Mason, Rt. Hn. Roy
Williams, Mrs. Shirley (Hitchin)


Hattersley, Roy
Mayhew, Christopher
Winnick, David


Heffer, Eric S.
Mellish, Rt. Hn. Robert



Hooley, Frank
Mitchell, R. C. (S'th'pton, Test)
TELLERS FOR THE NOES:


Horner, John
Morris, Charles R. (Openshaw)
Mr. Donald Dewar and


Houghton, Rt. Hn. Douglas
Morris, John (Aberavon)
Dr. Ernest A. Davies.

7. Army Reserve Act, 1969.

8. Tattooing of Minors Act, 1969.

9. Foremen and Staff Mutual Benefit Society (Application of Rules) &c. Act, 1969.

10. Barclays Bank Act, 1969.

11. Teesside Corporation Act, 1969.

12. Phoenix Assurance Company Act, 1969.

13. Ryde Corporation Act, 1969.

14. Saint Mildred, Bread Street Act, 1969.

15. Salisbury Railway and Market House Act, 1969.

Orders of the Day — FREEDOM OF PUBLICATION (PROTECTION) BILL

As amended (in the Standing Committee) further considered.

Clause 1

RESTRICTION ON PROCEEDINGS

Mr. Edward Lyons: I beg to move Amendment No. 1, in page 1, line 6, leave out from beginning to second 'proceedings' in line 11.

Mr. Speaker: I suggest that it would be convenient for the House to discuss, at the same time, Amendment No. 3, in line 12, leave out 'such publication' and insert:
'the publication of any matter in a newspaper or in a broadcast by wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the United Kingdom'.

Mr. Lyons: The Clause deals with two separate matters. The first part attempts to state the circumstances in which the publication of a matter in a newspaper or in a broadcast amounts to the offence of contempt of court. The second part provides that proceedings for contempt of court arising out of such publication shall not be instituted without the authority of the Attorney-General.
Amendment No. 1 would omit the first half of the Clause and, in so doing, would confine the provision to a requirement that the proceedings for contempt arising out of the publication of a matter in a newspaper or in a broadcast shall require the consent of the Attorney-General. Amendment No. 3 is a drafting matter and would enable the surviving part of the Clause to stand on its own. In other words, the purpose of the two Amendments together is to take out of the Bill any attempt to define the offence of contempt of court.
The Explanatory Memorandum to the Bill says that the Clause will make clear the nature of contempt of court in respect of the publication of any matter in newspapers and in broadcasts. In Committee, the hon. Member for Birmingham, Hall Green (Mr. Eyre), the sponsor, said that the Clause would enable newspapers to comment more freely on matters of large-scale fraud. He said that the present state of the law inhibited a news-

paper editor from attempting to bring large-scale fraud to the attention of the public.
My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) asked in Committee how the Clause would improve the position in this respect. The hon. Member for Hall Green replied that he would answer that question when he replied to the debate, but having re-read the OFFICIAL REPORT of the hon. Gentleman's comments on that occasion I have been unable to discover such an answer. Nor did the hon. Member for Accrington (Mr. Arthur Davidson), who said that he had played some part in drafting the Clause, deal with the matter.

12.30 p.m.

Mr. Eyre: Is it not the fact that on that occasion I stressed the importance of the Attorney-General's consent, which follows in this Clause; and that I also relied upon the professional evidence of the hon. Member for Accrington (Mr. Arthur Davidson) who is legal adviser of a newspaper and who said that the provision would help the working journalists.

Mr. Lyons: Although it was suggested that the Clause might help working journalists, there is at the moment no Act of Parliament that defines the offence of contempt. The offence is enshrined in case law. One could argue, I think rightly, that even in case law there is no exhaustive definition. The attempted definition does not illuminate the case law. It does not exactly replace it in order to simplify it. It does not simply consolidate case law. It detracts from the existing definition.
If, at the moment, a person or a newspaper were to attack or scandalise a judge, under the law as enshrined in case law the newspaper editor who did that could be brought before a court to face proceedings for contempt. Under the attempted definition in the Clause, that would be no longer the case. In other words, contempt is limited. It was argued in Committee that that would not matter, because if a newspaper editor scandalised a judge he could be sued by the judge for libel.
First, however the trial might be imminent in which the judge was involved and, secondly, it would be a humiliation for our judges constantly to be


bringing actions for libel against newspapers which had scandalised them.

Mr. Alexander W. Lyon: is not the answer to this point that in proceedings for contempt, the judge, when acting in proceedings for contempt, is not safeguarding his own person but safeguarding the court as an impartial instrument of justice? Therefore, an action for defamation is completely beside the point. The purpose of proceedings for contempt is not to preserve the judge's reputation but to preserve the integrity of the court.

Mr. Lyons: I am grateful for that intervention, which is, as usual, a valuable contribution. The fact is that attacks on judges are an obstruction to public justice. That being so, I think that the present machinery should remain and the present definition should remain until something better is found.
Temperate criticism of a judge or court made in good faith is not restricted. What is objectionable is language which would damage the public by undermining or impairing the authority of the court. I suppose that one could also say that if there were scandalising of a judge one could at the trial have challenges for cause of the jury to see whether any of them had been affected by the publicity; in other words, whether their minds have been prejudiced as a result of reading scandalous matter about a judge.
The trouble about that is that the challenge for cause of a jury comes not from the judge but from counsel for the prosecution or for the defence. In a recent case in which I was involved, though the case was not one of scandalising a judge but a case in which a newspaper had overstepped the mark in comment—it took hours for jurors to come into the witness box to be examined to see whether their minds had been affected by improper publication. That is not a satisfactory way of dealing with the matter.
I understand that tribunals of inquiry are not judicial proceedings, and this definition, or purported definition, of contempt relates to judicial proceedings. Tribunals of inquiry would, therefore, be excluded, so that if the Clause were enacted those who were guilty of matters which would otherwise be contempt of

court would have no sanctions against them with regard to a tribunal. That is another failure.
I should like the hon. Member for Birmingham, Hall Green (Mr. Eyre) to tell us how his attempted definition in any way improves on the present state of the law. It seems to me that by limiting the definition merely to newspapers and to broadcasts it would adversely affect contempt proceedings for matters not related to newspapers or broadcasts. Unless I can be satisfied—and I do not think that I can be—that the Clause in any way improves the present definition of contempt, I must continue my opposition.

Mr. Eyre: I am very impressed by the arguments advanced by the hon. Member for Bradford (Mr. Edward Lyons) and by the hon. Member for York (Mr. Alexander W. Lyon) in his intervention, so I say at once that I accept the Amendment.

Amendment agreed to.

Further Amendment made: In line 12, leave out 'such publication' and insert:
'the publication of any matter in a newspaper or in a broadcast by wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the United Kingdom'.—[Mr. Edward Lyons.]

Mr. Dewar: I beg to move Amendment No. 4, in page 1, line 13, at end insert:
(2) In the application of this section to Scotland in subsection (1) the words from and proceedings' to the end shall be omitted.
This Amendment is to some extent the twin, so to speak, of the Amendment that has just been accepted, and I am curious to see whether it gets the same warm welcome from the sponsors.
I owe it to the House to make one very short explanatory point. There are in my name a number of Amendments which are designed to make this Bill compatible with the law of Scotland. They might become irrelevant if the House accepted mendment No. 19 in the name of the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie). That Amendment is in page 5, line 17, after 'Act' insert
'shall not extend to Scotland and'.

Mr. Eyre: I understand the legal difficulties which apply to Scotland in this matter. Perhaps the hon. Gentleman would be prepared to follow the reasoning of my hon. and learned Friend the


Member for Edinburgh, Pentlands (Mr. Wylie) and feel that it would be preferable to deal separately with Scotland rather than to argue this point in detail now, and perhaps run into the danger of mutilating the Bill and affecting its beneficial effect in England. The hon. Gentleman would still be able to have the Scottish problems dealt with separately.

Mr. Dewar: I am obliged to the hon. Member for that helpful suggestion, but I cannot entirely accept it. I am in the difficulty that I am reserving my judgment on the exclusion of Scotland until I see the fate of the Amendments which I have on the Notice Paper which would bring the Bill into line with Scottish law. I give the Bill credit that it has many good things in it, and I am unwilling wholly to exclude Scotland from it at this stage. It may be that if I have no luck with the Amendments which I think are necessary to make it a workable proposition in Scottish law, I shall, with great regret, have to do without the benefits of the Bill and have to support the exclusion of Scotland from it. But I should like to save the Bill, or parts of it, from the Scottish point of view, and at this stage I must persist with this Amendment in the hope that it will find favour with the House. If it does not, I shall have to reconsider my position.
The Amendment arises from the difficulty of drafting a United Kingdom Bill, drawn with the law of England in mind, because of the differences which exist north of the Border. All too often we have United Kingdom statutes with a rather inadequate interpretation Clause squeezed in at the end in a half-hearted attempt to adapt some of the legal phraseology to make the statutes a working Scottish proposition. There have been many precedents. Scottish lawyers are always complaining about this practice. The difficulty is that if we exclude Scotland and wait for separate Scottish legislation, because of pressure on Parliamentary time we may wait for a very long time.
The part of the Clause which I am endeavouring to exclude in respect of Scotland is that which lays down that proceedings for contempt
shall not be instituted except by or with the consent of the Attorney General".

I am sure that the sponsors of the Bill are the first to accept that that is meaningless in Scottish terms. The Attorney-General, as all will agree, has no writ north of the Border, no jurisdiction in Scotland. This part of the Bill as it stands is a complete nonsense for Scotland. It would have been tempting and in one sense very much easier, as well as apparently simpler, merely to have added a Clause to substitute the authority of the Lord Advocate in Scotland for that of the Attorney-General in England. That proposal was carefully considered, but I confess that it was not a solution which ultimately commended itself to me.
The House will remember the general argument used on a number of occasions by the Attorney-General to explain his general objections to this provision even in England. I stress that those arguments not only apply in Scotland but seem to me to apply with added force in that country. Although in England it may generally be true, as many of us accept, that the Attorney-General has to step in to give his permission before an action can be instituted—

Mr. Richard Sharples: On a point of order. Mr. Speaker, may I seek your guidance? The proposer of the Bill has indicated that it is his intention to recommend to the House the acceptance of Amendment No. 19, which excludes Scotland from the provisions of the Bill. If we were at this stage to discuss Amendment No. 19 with the Amendment which has been proposed by the hon. Member for Aberdeen, South (Mr. Dewar), we might save a great deal of time which would otherwise be spent in discussing various Scottish Amendments which, in fact, would not be relevant to the Bill if Amendment No. 19 were accepted.

Mr. Speaker: The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), whose name is down to Amendment No. 19, is not in the Chamber at the moment. It do not know whether he would wish to take part in the debate on that Amendment.

The Attorney-General: The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not able to be present for the debate today.

12.45 p.m.

Mr. Speaker: The hon. Member for Birmingham, Hall Green (Mr. Eyre) has given an undertaking to the hon. Member for Aberdeen, South (Mr. Dewar) which, it seems to me, will be honoured when we reach Amendment No. 19. If the House has no objection, then I have no objection to including Amendment No. 19 in the present debate.

Mr. Dewar: As I said earlier, I recognise that I may be moving a series of irrelevant Amendments, but if we were also to debate Amendment No. 19 at the same time it would make for a very wide debate. If it were the wish of the House so to do, I should be prepared to accept that proposal, but I should be reluctant to do so. Although the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not here at the moment, he might arrive later and then feel slightly chagrined if the Amendment had been debated.

Mr. Speaker: First, the hon. and learned Member for Edinburgh, Pentlands is not coming to the debate today. Second, any hon. Member may move the Amendment which stands in his name.

The Attorney-General: The suggestion apparently is that the House should discuss Amendment No. 19 with Amendment No. 4. Amendment No. 19 provides that the Act shall not extend to Scotland, and the ground which could be covered in the debate on that issue could cover the whole context of the Bill, if my hon. Friend the Member for Aberdeen, South (Mr. Dewar) saw fit to approach it in that way. The debate might even anticipate the Third Reading debate, to which we may well move in the course of the day.
It therefore seems to me doubtful whether at the end of the day this proposal will have been found to speed the progress of the discussion of the Bill. It does not follow that if the House is willing to approve some of the Amendments in the name of my hon. Friend the Member for Aberdeen, South, it will also be willing to approve Amendment No. 19. The course which is proposed, therefore, might well be unsatisfactory and perilous and it might be found at the end of the day not to have assisted the House.
When we debate Amendment No. 19 I shall have some observations to make

on the desirability of legislation for England and Scotland on any important measure affecting the law going together as far as can be. At the end of the day, therefore, it may well be that what is proposed will have been time-consuming rather than time-saving.

Mr. Speaker: I think that we must leave it and proceed as we were. I am grateful to the Attorney-General for stating clearly the difficulties which may arise if we add this wholesale Amendment No. 19 to the debate on the partial. Amendment No. 4.

Mr. Dewar: I was explaining that the general arguments against the Bill apply strongly in Scotland. Clearly, if the Attorney-General or any law officer had to give his permission before proceedings for contempt could be instituted, embarrassment could arise. The right hon. and learned Gentleman has pointed out that a Ministerial colleague of his might well be involved in some future action, and if he is not in a position to say, "At least you can yourself institute proceedings. I do not have a final veto", he will be in an embarrassing situation.
That argument is much more powerful when applied to Scotland for the very good reason that the Lord Advocate is involved in prosecutions much more directly than the Attorney-General is involved in prosecutions in England. It will not have escaped the notice of the House that the equivalent to the Director of Public Prosecutions does not exist north of the Border. The result is that the Lord Advocate or the Crown Office which he controls is a party to every major prosecution which takes place in Scottish courts. It is self-evident that normal actions or possible actions for contempt arising out of publication in newspapers might involve a possible prejudice to the defence. It is wrong that the law officer who is in charge of almost every prosecution should be asked to sit in judgment on the question whether there is a prima facie case of contempt which will prejudice the defence in the very case which he is controlling.
There is a clear potential clash of interests here. This has been recognised during these debates. The hon. and learned Member for Northwich (Sir J. Foster) in cols. 18 and 19 in Committee


on 2nd April supported the Attorney-General's general argument and said that he would like some middle way. He suggested an appearance before a judge in Chambers—

Mr. Speaker: Order. The hon. Gentleman must speak to his own Amendment, which seeks to provide that this part shall not apply to Scotland.

Mr. Dewar: I am sorry, Mr. Speaker. I was merely trying to emphasise that there was general unhappiness here and that, because of the nature of the Lord Advocate, in charge of the Crown Office, "doubling up" for the Director of Public Prosecutions, there are important reasons for excluding the operation of this part of the Clause from Scotland. We cannot leave the situation as it is, leaving the Attorney-General in, and make sense of the Bill for us. For the reasons which I have given, it is better not to have a straight substitution but to move on.
In Scotland, as I think in England, many of these cases of contempt are instituted by the individual concerned. The major Scottish authorities quote the cases of Stirling v. Associated Newspapers or the older case of Smith v. Ritchie, which show that it was the individual who protected his rights by seeking redress in the courts. It would be wrong for Scotland and for our precedents to cut off that right and stop people from protecting their interests and leave them dependent on the say-so of the Lord Advocate, who is often responsible for the prosecution in the case at issue.

The Attorney-General: I should like to lend my support to the Amendment, which disapplies, in respect of Scotland, the provision in Clause 1 that proceedings for contempt of court which are referred to in the Clause shall not be instituted except by or with the Attorney-General's consent. These words are obviously inappropriate for Scotland, where, happily or unhappily, the Attorney-General has no jurisdiction.
But the Amendment goes further. It does not try to substitute the Lord Advocate for the Attorney-General as the person whose consent is necessary for the bringing of such proceedings, but proposes to maintain the present position

in England, Wales and Scotland, that the individual citizen may himself iniate contempt proceedings.
We discussed this on Second Reading and in Committee when, while accepting the implied compliment to my office embodied in Clause 1 and the confidence reflected in it, I said that, for the citizen and the Law Officers, whether the Lord Advocate or the Attorney-General, it was desirable that the citizen should have a last resort recourse to contempt proceedings himself. My noble Friend the Lord Advocate is very anxious that the principle of the right of the individual citizen to proceed should be maintained in Scotland.
In Scotland, the Lord Advocate is involved in all criminal proceedings as the public prosecutor, whereas, in England and Wales, I am concerned directly only in the limited number of cases which can be brought only with my authority and consent, and those cases under the control of the Director of Public Prosecutions, for whose activities I am answerable to the House. If the Lord Advocate's consent were a prerequisite of contempt proceedings, he would be in an invidious position in view of his position as public prosecutor.
Since newspaper contempt usually involves prejudice to the defence, it could be argued that there was a conflict of interest if the Lord Advocate's consent were always required, in that, in a particular case, he might have allowed his interest as prosecutor to affect his decision about contempt proceedings.
In Scotland, in view of the principle of secrecy in all investigations leading up to a criminal trial, the Scottish courts have traditionally been sympathetic to proceedings for contempt brought by accused persons who allege that their trial has been prejudiced by publication of matters involved in such investigations. In Scotland, many of these cases have been brought by the individuals themselves. That has not been the pattern, in practice, in England and, as I said in Committee, there has been only one occasion since I have been in this office on which I have brought contempt proceedings. I cannot think of more than one or two where an individual citizen has proceeded.
I know that the Lord Advocate attaches great importance to maintaining the citizen's right. This may not be an additional benefit to the Press. If the Lord Advocate and the Attorney-General had the exclusive authority to take contempt proceedings, by the end of the day, if only as a precaution, more rather than fewer contempt proceedings might be brought.
Accordingly, I warmly support the Amendment and regret that it has not been possible similarly to remove that provision in the Clause—

Mr. Speaker: Order. We are on one Amendment at the moment.

Mr. Eyre: Although I have been slightly puzzled by some of the Scottish legal terms, I have been impressed by the argument of the hon. Member for Aberdeen, South (Mr. Dewar) and I should like to accept his Amendment.

Mr. Alexander W. Lyon: The Amendment would add double bastardy to a Clause which is already bastardised. The purpose of the Clause as it stands, after the acceptance of the last Amendment, is that the newspapers and mass media have a special privilege, which is not open to other people who commit contempt of court—namely, an individual in other circumstances can proceed before the court for contempt, while the mass media can do so only on the fiat of the Attorney-General. The Amendment has been accepted by the sponsor and approved by my right hon. and learned Friend. Shame upon shame! That it should be approved by a legal luminary of such distinction—[HON. MEMBERS: "Oh."]—I am thinking about my nomination—is quite shocking.
Now, the right which existed before the Bill will, I hope, exist when the Bill is voted down—that anyone can bring proceedings for contempt before the court in England. This has been removed by the Clause but will be retained in Scotland. So an individual in Scotland will be in a better position than his counterpart in England in contempt proceedings.
1.0 p.m.
It seems to me, therefore, that we have first of all the original illegitimacy, that in England in relation to

contempt committed by mass media there is only the fiat of the Attorney-General and that in Scotland there is a particular distinction for the individual—but only in Scotland. I find, not for the first time, that this is an invidous distinction against the English.

Mr. Carlisle: I appreciate that the hon. Gentleman is only trying to assist the Attorney-General in his deliberate intention to talk the Bill out in order to avoid voting on the Third Reading.

The Attorney-General: I regard that as an entirely unwarranted intervention. It is important that the position of the Lord Advocate and of the Attorney-General should be stated.

Mr. Carlisle: That may be so. I do not want to encourage the hon. Gentleman to go further, but the point he is making is ridiculous. All that the Amendment does is to delete the reference to the Attorney-General in the institution of proceedings in Scotland. It does not say anything about whether at a later stage another Amendment should be inserted to include somebody else. All it does is to improve the drafting.

Mr. Alexander W. Lyon: It relates to a procedure which I should like applied throughout the United Kingdom, but it does it for Scotland. It creates a bastardy and goes on to a double bastardy by removing it only in the case of certain privileged children.

Mr. Carlisle: If it removed somebody whose writ ran in Scotland that would be true, but all the Amendment does is to appear to give the Attorney-General a power which he does not have. All the Amendment does is to remove a nonexistent power.

Mr. Alexander W. Lyon: If the position of the individual in Scotland were to be made the same as that of the individual in England, the appropriate Amendment would have been to include the Lord Advocate. But that is not the Amendment which has been moved. This reinforces my suggestion that we are giving a double privilege to a particular section of the community and one which, on the whole, I am against.
I can understand that the sponsor of the Bill feels a little incensed by that, but for him to use such intemperate


language and to suggest that I am seeking to talk the Bill out, and at the instigation of the Attorney-General whom I have just been criticising for his lack of legal insight, is most unkind—I know that I have lost a friend indeed when I use such words about the Attorney-General—and it is certainly not the case.
Rarely do I engage in the heinous sin in this House of intervening in a Scottish matter, but I do have certain Scottish ancenstry and I am disposed, moreover, to effect uniform justice throughout the United Kingdom, which this Clause and this Amendment taken together do not do. In the circumstances, therefore, I am not sure that this makes the position any better. I appreciate that the Amendment will have to be accepted, because at the moment the Clause is a nonsense so far as Scotland is concerned, but it seems to me that while it is a nonsense for Scotland, it is a gross injustice for England. Therefore, at a later stage I shall have certain references to make to the Clause in general.

Amendment agreed to.

Clause 3

ACTS NOT PREJUDICIAL TO PUBLIC INTEREST

Mr. Dewar: I beg to move Amendment No. 7, in page 2, line 20, leave out 'admissible in evidence' and insert:
'evidence (and in Scotland sufficient evidence) of the matters stated in it'.
I am rather sensitive to the charge of prolonging the proceedings and I intend to take but a very short time on this matter.
As the House realises, this Amendment redrafts the provisions of Clause 3(3) which allows to be produced in evidence a document purporting to be a certificate under the hand of a Minister of the Crown that the act in question was prejudicial to the public interest. The difficulty is that it takes no account of the Scottish law of corroboration.
Subsection (3) states that when an accused person is charged with receiving an official secret and relies upon the defence afforded in subsection (1)—namely, that it is not prejudicial to the public interest—
… the judge shall take into account together with any relevant matters any certificate … and the reasons advanced in the certificate …

This allows the judge, if he thinks fit, to give that consideration without any witness being called to speak to its contents.
As I understand the law in Scotland, this would not be the situation, and if the judge gave the kind of consideration which the sponsor of the Bill has in mind, and which I do not challenge, unless the matter has been made specifically clear in the Clause, corroboration would be necessary. This form of words is merely to give exact statutory definition to the situation to make it clear that this is an exception to the normal rules of corroboration as we know them in Scotland and that a judge in Scotland can take evidence of the certificate as sufficient evidence without calling anyone to testify in its support.
I hardly think that it is necessary, but I might mention that the certificate is not conclusive. It merely gives the judge the option to accept it if he wishes. As the Clause stands now, as I understand,—I am open to correction—there might be some doubt about the position in the Scots courts and it might be held that evidence had to be laid before the judge to give the consideration which the sponsors of the Bill envisage.

Mr. Eyre: May I say that I shall be prepared to accept this Amendment.

The Attorney-General: While I strongly oppose Clause 3, it seems to me that, in the unhappy event of its surviving, this Amendment improves matters a little because it takes into account the Scots law of corroboration and it relates the matter to Scottish procedure in a satisfactory way.
This is not the appropriate moment for me to develop my objections to Clause 3, but I give due warning that I shall have to do that in due course.

Amendment agreed to.

Clause 4

OTHER EVIDENCE IN MITIGATION OF DAMAGES

Mr. Dewar: I beg to move Amendment No. 8, in page 2, line 30, leave out 'were'.

Mr. Deputy Speaker (Mr. Sydney Irving): With this Amendment we may discuss Amendment No. 9, in page 2,


line 32, leave out from 'of' to end of line 33.

Mr. Dewar: The House will be relieved to know that these Amendments, as far as I know, have nothing specifically to do with the law of Scotland and the matter is, perhaps, of slightly more general interest. It arises out of the point made by the hon. and learned Member for Northwich (Sir J. Foster) in Committee on 16th April, reported at col. 85 of the OFFICIAL REPORT.
Clause 4 will add a new Section 12A to the Defamation Act, 1952, the idea being—I think that the proposal is generally acceptable and this Clause has had the warmest welcome of all—that a defendant should be able to advance in mitigation evidence of other charges against the plaintiff. The difficulty, as see it, is that the new Section 12A would allow the defendant to advance evidence of other charges made at the same time which he did not ultimately intend to prove were true. It is felt that this might be generally prejudicial and somewhat unjust.
The effect of the Amendments would be to make the new subsection (1) read:
Subject to the following provisions of this section, in any action for libel or slander the defendant may give evidence in mitigation of damages that, in addition to any charges contained in the words complained of in the action, other words containing other charges against the plaintiff published on the same occasion as the words complained of were true".
The point here is the deletion of the words in paragraph (b),
or one or more of them".
which imply that the defendant could cite charges which were to be made but which he would not be in a position to prove. That implication is confirmed as the new Section 12A stands by subsection (2), which provides that the requirement of due notice is not confined to the charges to be proved under subsection (1)(b) but refers generally to any matter on which the defendant may give evidence under subsection (1).
It is undesirable that there should be any encouragement given to a defendant to bring in evidence other than that which he can prove to be true. An example probably affords the easiest way to make

the point clear. The defendant originally stated that the plaintiff had committed adultery with X, that he had conducted himself in an improper or indelicate way towards women over a period of time, and that he had lived in sin for a considerable time with Y.
The truth is that the plaintiff had been living in a union out of wedlock with a woman, but he had not committed adultery with X and there was no truth in that allegation. He might then bring defamation proceedings, presumably, on the ground that he had not committed adultery in those circumstances. But, as he would have great difficulty in disproving the more general assertion about his conduct towards women, he might be advised to ignore that and not bring it into the action.
Under the new Section as drafted, however, when defending himself against the charge of defamation for his allegation of adultery with a specific person, the defendant might not only be able to advance the fact that the plaintiff had been living out of wedlock with a woman, but he could bring in a more generalised allegation of conduct over a period of time towards women.
It seems to me that that could be unfortunate. It might well be that the defendant, although he was bringing it in in the form of a plea of mitigation, would be in no position to substantiate his more general charges; they might be utterly without foundation. However, as the new section is drafted, he could drag them in and then, once they were in, they might well prejudice the jury's attitude towards damages in making its final decision.
No doubt, the judge would point out that the defendant had not proved the truth of the generalised charge, and he would say that under subsection (1) as now drafted the defendant was entitled to give evidence on that statement and the plaintiff had not claimed in his action that it was untrue. However, in spite of that, the very circumstances in which the matter was mentioned and, so to speak, paraded could create the danger of a general build-up of prejudice in the jury's mind in coming to its final decision.
As I say, the general idea of Clause 4 is widely welcomed, namely, that it


should be open to a defendant to plead in mitigation other charges which have substance but which have been excluded from the main body of the action because of careful and wise selection of the grounds in the legal fight by the plaintiff. On Second Reading, the Attorney-General gave the example of an accusation against a jockey that he pulled his horse in 10 races whereas, in fact, nine of the charges were true and the tenth was not, the slander action being taken on the tenth.
To tidy up this situation and to strengthen the position of a defendant in this situation when he has been caught on narrow grounds, and to ensure that he can bring in wider issues or charges made at the same time which are true, the Clause has been framed as it has. But it seems to me proper that we should tighten it a little further and enforce upon the defendant, when he brings in the charges in mitigation, that he limit them to those which are true and which he is prepared to substantiate in evidence.
That is the general intention, and I hope that it commends itself to the House.

1.15 p.m.

The Attorney-General: I listened with care to the interesting argument advanced by my hon. Friend the Member for Aberdeen, South (Mr. Dewar). The new Section 12A which Clause 4 inserts into the Defamation Act, 1952, was criticised by the hon. and learned Member for Northwich (Sir J. Foster) in Committee, and it is criticised now by my hon. Friend, on the ground that subsection (1) appears to allow the defendant to mitigate his damages by proving that other charges, or one or more of them, were true.
It is the words
or one or more of them
which cause the difficulty. Subsection (2) requires the defendant, as a condition of giving evidence that these other charges were true, to give notice of them at some previous stage to be specified by rules.
What is criticised in the present draft is that it is wrong to allow the defendant to give notice of a number of other charges and yet allow him to mitigate

his damages if he proves the truth of some only of them. This, it is said, will enable the defendant to level at the plaintiff a number of charges on which he has no intention to rely, thereby effectively throwing some additional mud at the plaintiff. This is what worries my hon. Friend.
The answer to that criticism is that a defendant who intentionally levels other charges against the plaintiff which he knows he has little chance of substantiating will be not mitigating but aggravating his damages. On the other hand, it would defeat the whole purpose of the new Section if the defendant's attempt to mitigate his damages failed totally merely because he did not succeed in establishing the truth of one, perhaps the least serious, of the other charges of which he had given notice.
In Committee, I gave the example of a jockey alleged to have pulled his horse in 10 races, of which only one allegation is complained of. If the defendant gives notice of intention to prove the other nine in mitigation of damages, he should not be defeated in this attempt merely because, when the time comes, he succeeds in proving only eight of the nine allegations, although his failure to prove the ninth may obviously result in the quality of the mitigation being less effective.
If one considers the case of a film, for instance, one sees the thought which lies behind the draft as it stands. Let us suppose that the matter complained of is a libel in a film. The defendant wants to rely on other matter contained in the same film. It could be assumed that he would put in evidence the whole film, even though the film might contain numerous charges against the plaintiff, and the defendant, although able to adduce evidence as to the truth of some of those charges, is not able to adduce any evidence as to the proof of the remainder of them.
Apparently, what is proposed in the Amendment is that in these circumstances the defendant cannot put the whole film in evidence. He would have to try to produce in evidence an edited version consisting of those bits of film which contained the charges in respect of which he is able to give evidence as to their truth. I wonder whether it will always, or even usually, be practicable to do this.
There are, therefore, difficulties arising from the proposed Amendments, but, if the Bill makes further progress, I undertake to look at the points made by my hon. Friend.

Mr. Dewar: I have listened with interest to what the Attorney-General has said. These are complex matters, and, in view of his assurance, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6

JUDGE'S RULING ON DEFAMATORY MEANING

Mr. Dewar: I beg to move Amendment No. 11, in page 4, line 8, leave out 'sections 14 and' insert 'section'.

Mr. Deputy Speaker: With this Amendment we can take Amendment No. 12, in page 4, line 10, at end insert—
(3) This section shall not extend to Scotland.

Mr. Dewar: The substantive Amendment is Amendment No. 12; Amendment No. 11 merely omits the reference to the Scottish interpretation provisions in the 1952 Act.
Clause 6 sets out to ensure that in a situation where there is argument and in which submission are made by counsel as to whether the words complained of are capable in law of any defamatory meaning, the argument should take place before the judge and in the absence of the jury. I do not object to the general intentions of the Clause; indeed, it would be strange if I wanted an argument of this type to be heard in the presence of the jury. The Bill has been drafted with English legal considerations in mind. The appearance of the words "libel or slander", in the first line of the Clause, underlines that, as these distinctions are meaningless in Scots law; and I am surprised that it has been thought necessary to do this.
The Attorney-General, on Second Reading, gave his opinion that, if clarification were necessary, it could more usefully be done by rules of court rather than by legislation. This suggests that there is at least a little doubt and a little need for clarification. It is apparently

contemplated that argument of this type takes place in the presence of a jury; perhaps it does. But I have a great aversion to redundant legislation, and I see no reason why we should put on the Statute Book a Clause which has no application to the law of Scotland. It is universal practice in Scotland for this type of legal argument to be heard by the judge alone in the absence of the jury.
It may be that the Attorney-General will have information on this, but I have not been able to find an exact precedent in the sphere of defamation, but the rule is established by analogous decisions in a wide range of cases. For instance, the Scottish law of corroboration, as has already been mentioned, is much more tightly controlled in Scotland than in England.
Until the passing of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968, which was hotly opposed by the Opposition, it was a common occurrence for technical legal arguments to take place as to whether there was sufficient corroboration to allow the case to proceed. Invariably, the jury retired, and the technicalities and legal niceties were decided in court before the judge alone.
The position is equally clear in criminal cases. The matter was decisively and authoritatively concluded in Chalmers v. Lord Advocate in 1954, when it was held that any legal argument to determine whether a statement of an accused was admissible, or whether it had been extracted by coercion, should invariably be heard by the judge alone in the absence of the jury.
I have no doubt that for Scotland this is a redundant Clause, and on general principles I see no point in asking the House to approve redundant provisions. I have no doubt that it will be argued that the very fact that we are adding a Clause to exclude Scotland might lead to the view being taken that the House was asking the Scottish legal system to make an exception in this case from its normally widely accepted practice, and that it does no harm to reinforce the universal practice by writing it into the Statute.
This is a tenable point of view, but the position is so well established that I feel it would be a grave mistake to


blur the clear outlines in the Scottish courts by allowing the Clause to stand as drafted applicable to Scotland.

Mr. Eldon Griffiths: In Committee, we had the advantage of practical men with great experience in journalism, and I was well aware then, as now, that if the lawyers got into the act we should probably encounter difficulties, all the more so if our Scottish lawyer friends got into the act.
The hon. Gentleman has argued that Scottish law in this matter is probably superior to English law because the judge makes the decisions. I am not a lawyer and do not enter into the merits of the argument. I hear what he says, but it reflects back on the previous discussions on the award of damages—

Mr. Dewar: The hon. Gentleman is under a slight misapprehension. We are discussing whether the jury should be present during technical discussions and legal submissions which everyone will accept are not the proper province of the jury because they demand expertise. We are anxious that the jury should not be confused by listening to what to them will be incomprehensible, or, worse still, half-comprehended, arguments which may put them in possession of distorted views when they come to reach their final decision.

Mr. Griffiths: In response to that, may I say, with great kindness, that this is typical of the total conceit of lawyers who feel that juries of ordinary men are not able to understand the mumbo-jumbo of the law but are perfectly capable of understanding all the financial intricacies of journalism. My argument is on all fours.
If the jury is not to be regarded as capable of listening to and understanding matters of law, I see no reason why it should be claimed to be capable of understanding all the financial intricacies which we were discussing earlier.
I address my second point directly to the Attorney-General. We are here dealing with some rather abstruse aspects of the Scottish law. The right hon. and learned Gentleman is extremely knowledgeable in all matters of law, both national and international. Could he explain to the House why he has not sought the assistance this morning of one

of the Scottish Law Officers in dealing with these matters? It is possible he is omnicompetent, but the House ought to have the benefit of advice from the Scottish Law Officers.

1.30 p.m.

The Attorney-General: I have consulted with the Scottish Law Officers. Unhappily, they are not here in person to give the benefit of their learning. As the hon. Gentleman well knows, the Lord Advocate sits in another place. Therefore, it falls to me, once again, with much trepidation, to venture into Scottish law.
Having taken counsel in the appropriate places, I have to tell the House that this Amendment should be opposed, not because of any disagreement with the substance of what has been said by my hon. Friend who has proposed it but because its acceptance might leave in doubt the law in Scotland.
The Amendment states that the section shall not extend to Scotland, and, as my hon. Friend has explained, this is because Clause 6(1) already represents the law of Scotland. It is, therefore, a matter of supererogation to include it in the Bill.
The danger is that the new subsection might be interpreted as meaning that in the limited instance of legal arguments mentioned in Clause 6(1) the normal rule should not apply. This is a real danger because, as my hon. Friend has said, there appears to be no decided case in support of the proposition that the general rule about legal arguments being heard in the absence of a jury applies in actions for defamation.
The danger is even greater because the ruling in civil cases in this regard is not so much a rule of law as a rule of practice, however invariable that rule has been. Therefore, it seems better to leave Clause 6 to apply to Scotland as a mere statutory reinforcement of the rule of practice, if nothing more. Accordingly, I hope that my hon. Friend will withdraw the Amendment.

Mr. Dewar: I am not entirely convinced about this. My right hon. Friend is playing it rather over-safe. In some ways I dislike giving way, but I can see the force of his argument.
The hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) got the


wrong end of the stick, when he spoke of the conceit of the law. It is not just that the jury would not necessarily understand or appreciate the true significance of technical or legal argument which is being discussed. Let us take as an example the admissibility of a confession given by an accused in a serious criminal case. There may be discussion in court about the contents of a document and the circumstances in which it was obtained. If, after legal argument, the judge decides that the document is not admissible and should not be laid as evidence, it would present a difficulty to the defence if a jury has been sitting through the argument, with ears flapping, taking in a great amount of the detail of a document which they are supposed to exclude from their minds.
I make that point in passing, but in view of what my right hon. and learned Friend has said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7

AWARD OF DAMAGES

Mr. Deputy Speaker: Does the Attorney-General wish to move Amendment No. 13?

The Attorney-General: I beg to move Amendment No. 13, in line 11, leave out Clause 7.
I move the Amendment formally since it has been debated.

Mr. Eyre: On a point of order. I am not sure what the Attorney-General means when he says that the Amendment to leave out Clause 7 has been discussed. The Attorney-General will recall that the Amendment to leave out Clause 7 was a consequential Amendment depending on the acceptance of new Clause 1, which the Attorney-General and a large number of Labour Members defeated—

Mr. Deputy Speaker: Order. The hon. Gentleman is entering into a debate by way of a point of order. May I help him? Mr. Speaker's selection proposed that new Clause 1 could also take in for debate Amendment No. 13. Amend-

ment No. 13 was also selected for a Division. Therefore, the debate on Amendment 13 has already taken place. It is only now a question whether the supporters of the Amendment wish to proceed to a Division.

Mr. Eyre: I appreciate that, and I apologise for being persistent on the point of order. It is merely that the selection obscures the reality of the situation. I am in no way in favour of, nor do I wish to be associated with, the Attorney-General's attempt to leave out Clause 7, which mutilates the Bill. It was put on the Notice Paper in my name only because it was a consequential Amendment to new Clause 1. The technical rules have resulted in an abuse of the Bill.

The Attorney-General: I hope that the hon. Member does not feel that he is being taken advantage of. I thought that he clearly understood what he was doing and what was the situation when Mr. Speaker proposed that Amendment 13 would be discussed. I do not want to truncate the debate on the Bill.

Mr. Eyre: On a further point of order.

Mr. Deputy Speaker: Order. The only question for the Chair is whether the hon. Member and the right hon. Gentleman, whose names appear on the Amendment, wish to proceed to the Division. I understand that the Attorney-General has signified his wish to do so. If that is the case, I must proceed to put the Question.

The Attorney-General: I certainly wish the House to divide on my Amendment No. 13.

Mr. Eldon Griffiths: On a point of order.

Mr. Deputy Speaker: I fully understand the difficulties of the hon. Gentleman the Member for Birmingham, Hall Green (Mr. Eyre), but there is no other way so far as the Chair is concerned.

Mr. Griffiths: My point of order is in no sense intended to question or disagree with your Ruling, Mr. Deputy Speaker, or with Mr. Speaker's Rulings. It is to elicit some information for the convenience of the House.
As I understand the situation, my hon. Friend the Member for Birmingham,


Hall Green (Mr. Eyre) originally sought to move an Amendment covering the same matter as is now in his new Clause. Owing to the advice, correct or otherwise, of the Table Office, he has put the matter in the form of a new Clause. It was in no way his wish that it should be attached to Amendment No. 13.
I submit that since the House has already reached a decision on the new Clause and with it, for the purposes of discussion, Amendment 13, it must be out of order for Amendment 13 to be separately moved and voted upon.

Mr. Deputy Speaker: I cannot allow this matter to be debated. I understand the difficulties of the hon. Gentleman. All hon. Members are responsible for whatever appears in their names on the Notice Paper. I must proceed to the Division.

Mr. Roy Roebuck: rose—

Mr. Deputy Speaker: I have ruled on this. The position is very clear. Unless any hon. Member has any new matter I will put the Question, as I am required to do by Standing Orders.

Mr. Roebuck: From long experience, it is never my desire to fence with the Chair.

Mr. Deputy Speaker: The hon. Gentleman is seeking to address me on that point, a point which, I have said, has been disposed of.

Mr. Roebuck: I want some enlightenment, Mr. Deputy Speaker.

Mr. Deputy Speaker: I cannot help the hon. Gentleman any more.

Mr. Eyre: May I place on record the fact that the Amendment which I put down was in my handwriting. The Table Office insisted on its appearing on the Notice Paper in this form.

Mr. Deputy Speaker: The Table Office seeks to give advice to all right hon. and hon. Members, but once the Amendment is on the Notice Paper in the hon. Gentleman's name he accepts responsibility for it. He has put his point of view on record, and I must now put the Question.

Mr. Eldon Griffiths: On another point of order. I apologise for protracting this discussion. I know that this is a difficult matter for you, Mr. Deputy Speaker, as it is for the House.
Am I to understand that you now propose that the House should divide on the Amendment to leave out Clause 7? Is that right, when the House this morning has had no discussion on it? That, surely, is a point of order for the whole House?

Mr. Deputy Speaker: Order. The hon. Gentleman is seeking to debate my Ruling. The position is quite clear. The Amendment was selected for debate and discussed with new Clause 1. The only issue now is the Question, That the Amendment be made.

Question put, That the Amendment be made:—

The House divided: Ayes 63, Noes 16.

Division No. 223.]
AYES
[1.40 p.m.


Alldritt, Walter
Johnson, Carol (Lewisham, S.)
Oram, Albert E.


Barnes, Michael
Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Orbach, Maurice


Bottomley, Rt. Hn. Arthur
Jones, T. Alec (Rhondda, West)
Paget, R. T.


Bray, Dr. Jeremy
Judd, Frank
Parker, John (Dagenham)


Brown, Bob (N'c'tle-upon-Tyne, W.)
Kelley, Richard
Pavitt, Laurence


Carlisle, Mark
Kerr, Russell (Feltham)
Peart, Rt. Hn. Fred


Delargy, Hugh
Lestor, Miss Joan
Perry, Ernest G. (Battersea, S.)


English, Michael
Luard, Evan
Perry, George H. (Nottingham, S.)


Ennals, David
Lubbock, Eric
Rees, Merlyn


Evans, Ioan L. (Birm'h'm, Yardley)
Lyon, Alexander W. (York)
Rogers, George (Kensington, N.)


Fowler, Gerry
Lyons, Edward (Bradford, E.)
Ryan, John


Freeson, Reginald
Mackie, John
Shaw, Arnold (Ilford S.)


Hamilton, William (Fife, W.)
Mahon, Peter (Preston, S.)
Silkin, Rt. Hn. John (Deptford)


Heffer, Eric S.
Mahon, Simon (Bootle)
Skeffington, Arthur


Hooley, Frank
Marquand, David
Taverne, Dick


Hooson, Emlyn
Mason, Rt. Hn. Roy
Wells, William (Walsall, N.)


Horner, John
Mayhew, Christopher
Williams, Mrs. Shirley (Hitchin)


Houghton, Rt. Hn. Douglas
Mellish, Rt. Hn. Robert
Winnick, David


Hoy, James
Mitchell, R. c. (S'th'pton, Test)



Huckfield, Leslie
Morris, Alfred (Wythenshawe)
TELLERS FOR THE AYES:


Hughes, Rt. Hn. Cledwyn (Anglesey)
Moyle, Roland
Mr. Donald Dewar and


Irvine, Sir Arthur (Edge Hill)
Murray, Albert
Mr. Roy Roebuck.


Janner, Sir Barnett






NOES


Biggs-Davison, John
Hogg, Rt. Hn. Quintin
Sinclair, Sir George


Blaker, Peter
Hunt, John
Walker-Smith, Rt, Hn. Sir Derek


Campbell, B. (Oldham, W.)
Iremonger, T. L.



Cordle, John
More, Jasper
TELLERS FOR THE NOES:


Crouch, David
Prior, J. M. L.
Mr. Eldon Griffiths and


Dean, Paul
Rhys Williams, Sir Brandon
Mr. Richard Sharples.


Eyre, Reginald
St. John-stevas, Norman

Mr. Deputy Speaker: The next Amendment selected is No. 15, with which I think it would be convenient to take Amendment No. 18, in page 5, line 15, leave out 'and the Secretary of State, acting jointly,'.

Clause 9

CONSEQUENTIAL AMENDMENTS

The Attorney-General: I beg to move Amendment No. 15, in page 4, line 39, leave out from 'Scotland),' to end of line 41 and insert:
'after paragraph (c), there shall be inserted the following paragraph:—
(cc) in section 12A, subsection (2) shall be omitted;"'.
The Amendment disapplies in respect of Scotland subsection (2) of the new Section 12A which is inserted by Clause 4 in the Defamation Act, 1952. The object of the subsection is that where a person brings a defamation action based on a limited number of charges in a publication the other party should be able, in mitigation of damages, to prove that other charges in the same publication were true. Subsection (2) deals with the procedure for bringing such further charges in mitigation and provides that evidence of these charges shall not be led unless notice is given to the other party of the relevant words within such time as may be required by the Rules of Court, and unless the person proposing to prove these charges has given to the other party such particulars of the matters to which the words relate as the Rules may provide.
Such a provision regarding due notice and particulars appears to be necessary in England because of the rule of practice that although a plaintiff must specify his alleged damages, a defendant need not give particulars of matters which go to mitigation. But this practice does not apparently apply in Scotland where, in accordance with the strict rules of relevancy and specification in Scottish written pleadings, neither party may prove

any material fact either as regards the merits or as regards damages unless he has given due notice and specification either in his summons or his defence as the case may be.
The Amendment also deletes the present reference in Clause 9(1) to the Act of Sederunt. I am sorry about this having to go, because it seems such an attractive concept, but I am advised that the Act of Sederunt and the reference to it should be deleted. The Act of Sederunt precedure is the Scottish procedure by which Rules of Court are made, and the reference is no longer necessary as subsection (2) of the new Section 12A of the 1952 Act, which refers to Rules of Court, will no longer apply to Scotland.
The other Amendment, No. 18, is consequential on the Amendment omitting the provision in Clause 4 relating to notice and particulars of matters to be proved in mitigation of damages.
The reference to the Lord Chancellor and the Secretary of State in Clause 11(2) was considered necessary if time was to be allowed for Rules of Court to be made in England and a corresponding Act of Sederunt in Scotland. But as the matter will now be governed in Scotland by the normal rules of relevancy and specification, there will be no need to make an Act of Sederunt, and as soon as my noble friend the Lord Chancellor is satisfied that the appropriate English Rules of Court have been made the Act may be allowed to go into operation.

Amendment agreed to.

Mr. Deputy Speaker: The next Amendment selected is No. 16, in page 5, line 4, leave out from 'or' to end of line 5 and insert:
'of the Defamation Act 1969',
and with that we can take the Amendment No. 17, in Clause 11, page 5, line 12, leave out 'Freedom of Publication (Protection) Act 1969' and insert:
'Defamation Act 1969; and the Defamation Act 1952 and this Act may be cited together as the Defamation Acts 1952 and 1969'.

The Attorney-General: I do not move the Amendment in view of the fact that at this stage Clauses 1 and 2 remain in the Bill. They refer to matters over and above the matters confined in the defamation Clauses at—

Mr. Deputy Speaker: Order. The right hon. and learned Member must decide, either not to move the Amendment and make that submission on its own, or to proceed to move the Amendment.

The Attorney-General: I do not move it.

Clause 11

SHORT TITLE, COMMENCEMENT AND EXTENT

Amendment made: No. 18, in page 5, line 15, leave out
'and the Secretary of State, acting jointly,'.—[The Attorney-General.]

Mr. Dewar: I beg to move Amendment No. 19, in page 5, line 17, after 'Act', insert:
'shall not extend to Scotland and'.
I move the Amendment in the absence of the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), who, I discover, is attending the Scottish Conservative Party conference, an excellent excuse for being absent.
The Amendment seeks to exclude Scotland from the Bill. This has caused me a great deal of worry during the discussions this morning, because it has become quite clear that there are things in the Bill which I should very much like to see applying to Scotland. When I moved an Amendment to Clause 4, I said that the Clause had received a general welcome, and that that welcome was not confined to England. We should like the provisions of Clause 4 to apply to Scotland, and in moving this Amendment I am conscious of the fact that if we exclude Scotland we lose the benefits of that Clause, and that because of the pressure on legislative time the opportunity of making good that loss may be delayed for many Sessions, never mind many months.
I am the first to concede that there is a tendency on the part of anyone who has any connection with Scotland to be a little over-proud of the independence of Scottish law. There is a tendency to want to exclude Scotland merely because

we have suffered in the past and do not feel that we should be lumped in as Tail-end Charlies at the end of a piece of legislation which is basically proper according to considerations dictated by the law of England. One has to be very careful not to go along too easily with that kind of prejudice.
For all that I have said in its favour, Clause 4 is still a comparatively minor amendment, allowing as it does a slight clarification of the law in actions of defamation as regards pleas in mitigation. There is very little in the Bill which is of great help to us North of the Border. Clauses 2 and 3—there are arguments for and against them, and it seems that on the whole they are against—apply north and south of the Border. I am trying to confine my remarks, as I must if I am to remain in order on this Amendment, to those areas where there is a distinct Scottish case for exclusion from the Bill, as against a general argument which may be made for rejecting the Bill in its entirety, which would apply in English terms as much as in Scottish.
If one takes that narrow definition—does the Bill help or hinder Scottish law and the application in Scotland as distinct from England?—the sponsor of the Bill and those who wish to oppose the Amendment may find themselves in very considerable difficulty.
From a Scottish point of view Clause 1 has been improved by the generosity of the sponsor of the Bill who was quick to accept my Amendment to exclude the provision at the end of the Clause which in an utterly meaningless way gave the Attorney-General a duty to institute proceedings for contempt in Scotland. I accept that if that had not been accepted by the sponsor the case for the Amendment would have been overwhelming, but the hon. Gentleman gave way and agreed to that.
If one reads the Bill, one sees that many of the Clauses are of very little value from our point of view. Clause 5 deals with qualified privilege in newspapers, and purports to add paragraphs 7A and 7B to Schedule 1 of the Defamation Act, 1952. The idea is that
A fair and accurate report of any proceedings before a court exercising jurisdiction in any territory outside Her Majesty's dominions
should enjoy qualified privilege.
I recognise that I cannot debate the merits, but it is relevant to the debate to point out that Pope v. Outram and Riddell v. Clydesdale Horse Society, which is the decision on which the law of Scotland stands, means that we are in exactly the same position with Clause 5 as with Clause 6, and the House will remember that it was generally agreed that that was almost entirely redundant in terms of Scottish law, because in any case legal submissions are made in the absence of a jury. So we lose no benefit by not having Clauses 5 and 6 applied to Scotland. We have a benefit in Clause 7, and the views put forward by Lord Strachan in the inquiry into the duties of the civil jury have been upheld in the House, and again we are merely reiterating the law as it now is in Scotland.
The Bill is clearly tailored with a great deal of care in a technical sense—and I am not now talking about the merits—to fit the law as it exists south of the Border. I have already said that the distinction between libel and slander is entirely meaningless in Scots law, although the terms are freely spattered throughout the Bill. I must confess that it is a great temptation to argue that we in Scotland would be the better without the Bill.
But I do not want to be over-hasty. It is easy to point to these distinctions between the law of Scotland and that of England and to make a number of general points and to say that the general atmosphere of Scots law and our different attitude towards committal proceedings are a direct reflection of general attitudes to actions for contempt. The provision for an appeal against conviction for contempt in England, of comparatively recent introduction, was specifically excluded at the time from Scotland. Undoubtedly, there are these kinds of differences.
For some reason which I do not understand—and I can find no rational explanation for it—actions for defamation are rare in Scotland although comparatively common in England. I remind the House of what Stair said in 1681 when he remarked:
Such actions"—
that is, defamatory words—

upon injurious words are frequent and curious among the English but with us there is little of it accustomed to be pursued.
These broad and general differences between the two systems seem to justify the Amendment.
But I accept that we must not rush too quickly into this. The law of contempt in Scotland, for example, is based entirely upon case law, but I concede that in fact there is an enormous similarity and unity of purpose in the basic definitions of contempt as laid down in the courts in Scotland and in the courts in England. We are not in the kind of situation in which we would be if we tried in a United Kingdom statute to marry the conveyancing law of England with the property law of Scotland where the two systems cannot be brought together. The United Kingdom Town and Country Planning Bill of 1947 had to be abandoned because of the enormous difficulties which emerged because of the difference in the law, and a separate Scottish Bill had to be produced. The Defamation Act, 1952 is a United Kingdom law and I must confess that that is a telling argument against the Amendment, because there is this unity of purpose.
But, having studied the provisions of the Bill, I believe that, as has been formidably pointed out in the debates today and on previous occasions, great advances on a United Kingdom basis are not likely to be made because of the differences of the two situations. For instance, in England one has to consider whether a report is likely to prejudice the fair conduct of a trial or judicial proceedings, and the Scottish precedent is somewhat similar. For example, in Stirling v. Associated Newspapers it was laid down that the consideration was
whether the steps taken by the newspaper were such as to prejudice the impartiality of the ultimate trial".
In Smith v. Ritchie, when the Edinburgh Evening Dispatch ran a series of exposés denouncing a gentleman who was forging manuscripts purporting to be by Burns and Scott, it was quite properly laid down by the court that
anything which prejudiced the public mind so as to endanger the plaintiff's prospect of obtaining a fair trial
was prejudice. This is similar to the wording of Clause 1 and similar to the


definitions which have been laid down in English case law in the past.
I accept that if we take some of the obiter in Stirling v. Associated Newspapers, for example, some the the rules appear to be a little different and a little harsher in Scotland. For example, it has been laid down that
once a crime has been suspected and the investigation authorities are investigating, they alone have the duty of carrying out that investigation".
That sounds a very strict interpretation and at its face value it might be held to prevent a defence lawyer from investigating the case in order to put his defence together. But, and this is the great point about it, if one looks at how these rules have been interpreted, one will see that there has been very little difference except that dictated by the somewhat different attitudes towards committal proceedings.
I am the first to concede that in many respects there is a common view. However, considering all the various technical difficulties and all the other factors after they have been amply illustrated as they have been in the House today, on balance I do not think that we ought to attempt to bring two legal systems under one statutory umbrella, although I am prepared to listen to other arguments. It may be better to leave Scotland one one side and to opt out of the doubtful provisions of Clauses 2 and 3 and the almost certainly welcome provisions of Clause 4 because of the general confusion which is being engendered, and thus have a Bill which it is hoped will be a good Bill for England, and at some future date we may find time to introduce suitable legislation for Scotland.

Mr. Roebuck: Are these issues tried by juries in Scotland?

Mr. Dewar: They certainly are, and we are particularly pleased that the House has decided to leave that situation as it is. My hon. Friend may be interested to know that in Scotland the jury is a much more widely used piece of legal mechanism than it is south of the Border, where it seems to have been largely abandoned in personal injury cases and in the law of tort.
I leave this as an open question. Had earlier Amendments not been carried, I should certainly have pressed this to a

Division. As it is, I have taken it up for the purposes of discussion, but I still tend to think that we should leave out Scotland, and I shall listen with great interest to what the Attorney-General says.

Mr. Edward Lyons: England does not cover a great area. Does not my hon. Friend think that the effect of having an amended law for England and a different law for Scotland is likely to be a number of complications? For example, a Scottish newspaper may be able to print something which an English newspaper could not publish, but the Scottish newspaper could easily be brought over the Border. Would not that create all kinds of anomalies?

Mr. Dewar: That is an interesting question. It is obvious that people cannot be made subject to the law in watertight compartments. There is always a problem of jurisdiction in every field in Great Britain. Anyone who has taken part in the long, complicated and at times extremely technical argument on domicile will recognise the validity of that point. It is particularly true of newspapers published in England, or possibly Scotland, and then sent all over the country.
It could be very awkward for the man who has the job of being legal proof reader and adviser to a newspaper on contempt. His is never an easy job, for on his opinion may rest the freedom of the editor concerned, as it is not only the journal but also the editor who may be clobbered if he falls down on the job. It complicates his job if each time he has to construe the law not only in Scotland but also in England or vice versa.
In spite of that, if we leave aside the technical issues of drafting in this Bill and look at what the Bill says, we see that in several Clauses—Clauses 5, 6 and 7—the law of Scotland is in line with that in England, and the Bill offers no improvements of any value. In substance, and bearing in mind the kind of fact which will be considered by the legal advisers to newspapers, I do not think that the dichotomy will be very worrying.

The Attorney-General: The Amendment of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), which was originally in the name of the hon. and learned Member for Edinburgh, Pentlands


(Mr. Wylie), is one with which, I confess, I have the fullest sympathy.
As I shall explain if the Third Reading is reached, as is likely to be the case, there are strong objections to the Bill as it stands—to Clauses 1, 2, and 3, in particular, and 5. There are also other difficutlies arising from the Bill. I do not think that it would be appropriate for me at this stage to develop the arguments which in my view support the proposition that the Bill as a whole is objectionable.
But, that being my view of the matter, an Amendment which at any rate limits what I regard as the mischief which would be caused if the Bill were passed by excluding Scotland from its ambit is an improvement. I am therefore, disposed to support the Amendment.

Amendment agreed to.

2.14 p.m.

Mr. Eyre: I beg to move, That the Bill be now read the Third time.
Having listened to the last speech of the Attorney-General, I fear that he will take a hostile view of the Bill in his contribution to this part of the debate. I see from his activity that he is mustering the troops to take part in a Division, and I understand the consequences which will flow from that decision on his part.
There is no doubt that the law of contempt of court, of defamation and of official secrets is badly out of date in this country and in need of complete overhaul. I am glad that the Leader of the Opposition has set up a study group to review the whole of these matters and to work with eminent journalists and lawyers in bringing forward proposals which are necessary for that complete overhaul.
But I suggest that in the form in which we have discussed it, the Bill is a minor but useful adjustment. Despite the fact that the Attorney-General has taken advantage of a technical difficulty to knock out Clause 7, it still represents a minor adjustment of great importance within its accepted limitations. There must be a period of time before more substantial changes and improvements can be effected, and I very strongly suggest that within the interim period the Bill would enable the engine of the Press to function more effectively.
I suggest that the Attorney-General was over-critical in his unkind reference to Clause 1 as amended. I suggest that Clause 2 is of considerable importance with regard to the use of silencing or gagging writs which inhibit the Press in their exposure of certain frauds and scandals to which I shall refer a little later in more detail.
I suggest that Clause 3, dealing with official secrets, is a practical approach to the problem. I understand all the difficulties about official secrets and the wide-ranging implications of the Clause, but what annoys me is that the Attorney-General moved to leave out the Clause but made no reference at all to the promise which he made on Second Reading and in Committee to make a statement to the House on the form of the official inquiry which is supposed to be going on into the working of official secrets legislation.

The Attorney-General: I know that the hon. Member always wants to be fair in debate. I had an Amendment down to Clause 3 which would have given me the opportunity to make a statement. It may well be that before the afternoon is out I shall have an opportunity to make a statement.

Mr. Eyre: The Attorney-General uses words which hint that he will make a statement today. I did not know that he intended to do so and I am glad that he intends to do so because, when we remember the recommendations of the Fulton Committee, such a statement is urgently needed.
It is of extreme importance that we have more open discussions of matters of public interest affecting a whole range of domestic activities, such as the National Health Service, and that we know how this inquiry is going on, who is conducting it, into which Departments of the Government it is inquiring and how eventually the House will be informed of the consequences of the inquiry.
It is of great importance to all hon. Members that we should hear from the Attorney-General this afternoon the steps which are being taken in that direction. The question concerning official secrets in Clause 3 is of great importance to us all.
On the private side of the Bill, I suggest that in present circumstances the Press is very creditably undertaking the job of drawing the attention of the public to widespread frauds which affect an enormous range of small savers, people entering into insurance obligations, and people entering into various trading transactions by ordering goods through the post. They are dealing with a thousand-and-one transactions which affect the lives of ordinary people. We have to bear in mind the great difficulties which have developed in recent times because of these widespread frauds. I emphasise that it is not possible for the Board of Trade to deal adequately with these swindles. The Press is in an especially favourable position to give notice of the development of these frauds. It comes into possession of information, and it is creditable that it has tried to draw the notice of the public to these developing swindles.

Mr. Alexander W. Lyon: I know that we are on Third Reading and can deal only with what is in the Bill, but even dealing with the Bill as it stands, will the hon. Gentleman answer this question: how would the Bill have offered help to the Press in dealing with the problems which he has mentioned?

Mr. Eyre: The hon. Gentleman has been a persistent legal critic of the Bill. I assume that he has not listened to the views of working journalists. If he had, he would have been assured of the existence of the practical difficulties of which I have spoken. I have received a considerable amount of evidence from journalists on this score, and they have told me that Clause 2 will help considerably to overcome the "gagging" writ, which is the procedure used by fraudulent persons to prevent references being made in the Press to various fraudulent activities.
An example was the London and Cheshire Insurance Company. A writ was issued against a well-known Sunday newspaper to prevent it from referring to a scandal and warning the public about what was going on.
The idea of the Attorney-General giving his consent under Clause 1 means that if there is a possibility of imminent criminal proceedings, the Press may be

better protected against vexatious or improper attempts to threaten it with contempt proceedings. This will mean the Press being in a better position to expose scandals. Thus, considerable advantage can result from the Bill to the public in general in that the Press will be enabled to attack scandals and widespread frauds.
I hope, therefore, particularly if the Attorney-General divides the House, that hon. Members will bear these various factors in mind. They should remember the need for greater openness in the discussion of public affairs and the need for the efforts that are made by the Board of Trade to be supplemented in this way, by protecting the interests of a great number of ordinary citizens throughout the country, so that newspapers really feel that we appreciate their difficulties and that we are trying to help them in this important endeavour, which is of great concern to the public. I hope that hon. Members will remember, should a Division take place, that the Bill contains valuable provisions to help the Press in this interim period, pending more substantial reforms.

2.22 p.m.

Mr. Dewar: I intend to speak only briefly on this occasion because, to a certain extent, I have been opted out of the discussion in that the acceptance of Amendment No. 19 has meant Scotland being excluded from the Bill.

Mr. Deputy Speaker (Mr. Sydney Irving): Order. It is also excluded from consideration on Third Reading.

Mr. Dewar: Precisely, Mr. Deputy Speaker, and that is why I have no wish to speak about Scotland at this stage. However, the fact that Scotland has been excluded does not, in the United Kingdom Parliament, oblige me to leave the House today without commenting on some of the broader considerations which the Bill raises for England.
Like some of my hon. Friends, I am puzzled about exactly how Clause 1 will bring about any major improvement in the position for newspapers. All hon. Members are anxious to ensure that legitimate Press activity will not be unnecessarily inhibited and hindered. I therefore concede the general case made by the sponsors of the Bill about the


need to allow the Press freedom to expose a fraud and to make a fraudulent scheme more difficult to operate. I would not like to see the honourable tradition of crusading journalism—years ago, originally in America, often honourably referred to as "muck raking"—brought to an end by the threat of legal sanction.
The difficulty surrounding the law of contempt is that of definition, and I do not see how the form of words which has emerged in the Bill will take us far in solving this problem. The test in whether the publication of something is likely to prejudice the fair conduct of a trial or judicial proceedings. As my hon. Friend the Member for Accrington (Mr. Arthur Davidson) said on Second Reading, uncertainty arises not from what contempt is, but from when it should begin. That is, in many ways, a genuine difficulty and I fear that the definition contained in the Bill will take us not an inch further in solving this problem.

Mr. Eyre: Is not the hon. Gentleman aware that the part of the Bill to which he is referring was removed by the acceptance of an Amendment moved earlier by his hon. Friend the Member for Bradford, East (Mr. Edward Lyons)?

Mr. Dewar: I seem to have temporarily lost touch with an ever-changing position.

Mr. Edward Lyons: That is a fact. My Amendment was accepted.

Mr. Dewar: We have had so many criss-cross battles over this matter that I have obviously misunderstood the final position. However, I am pleased that that part of the Bill has been removed because it did not appear to advance matters one whit in the direction of solving the problems that are particularly worrying the sponsors.
I understand that we are left, in Clause 1, with a provision which merely says that the Attorney-General's permission must be sought before action for contempt can arise. Thus, we have had to abandon the attempt to clarify the law of contempt by statutory definition, with the result that we are merely left with the safeguard of needing the Attorney-General's agreement that a prima facie case exists so that proceedings may be instituted.

Mr. Eyre: I cannot understand why the hon. Gentleman seems astonished to hear that hon. Members who are promoting a Bill should be taking notice of the arguments adduced by other hon. Members and should be willing to amend the Measure to accord with those arguments. Perhaps our view does not accord with his experience of the legislative process.

Mr. Dewar: Earlier, I referred to the flexibility which the hon. Member for Birmingham, Hall Green (Mr. Eyre) had shown. I hope that he does not consider that I wish to withdraw that credit. Necessity drives on occasion; and perhaps the extreme flexibility of his attitude was partly dictated by considerations of a tactical nature.
What remains of Clause 1 will be of little value. Originally, we were trying to define "contempt", but instead of succeeding we are left merely with a limitation, and a limitation which I do not particularly like. As the Attorney-General said on Second Reading, embarrassment could arise if he is solely responsible for the instigation of proceedings. We must remember the question of timing and the need for speed in certain circumstances.
There is also the point of my right hon. and learned Friend being associated with transactions in the sense that his Ministerial colleagues might be indirectly involved, so that at the end of the day the Attorney-General will not be able to say, "If you think I am wrong, you can go ahead and proceed yourself." It is unfortunate that that right—the right of an individual to protect himself—has been abolished.
I do not believe that the Bill will greatly improve the situation or that we have a piece of legislation which will be of great help to the ordinary working journalist. I am sorry to sound a little ungracious about this, but there is no point in one pretending that this is a valuable reform when one does not believe that it is.
An enormous amount lies behind the Bill and I sympathise with the sponsors. I have no doubt that in many ways the motivation has been first class and the intention unexceptionable. However, when one considers the problem of trying to translate that motivation into a


workable legislative draft, one arrives at the conclusion that considerable difficulties have arisen.
If only because of Clause 4, which is useful, I would be loath to vote against the Bill receiving a Third Reading. However, the Measure has been so decimated that I wonder whether it will serve any useful purpose? I shall listen with interest to the speeches of hon. Members before ultimately making up my mind.

2.30 p.m.

Mr. Eldon Griffiths: It is good to know that the hon. Member for Aberdeen, South (Mr. Dewar) will wait until he has heard all the speeches before making up his mind on how to vote. May I assure him that we will hold him to that if the matter comes, as I hope it will, to a Division.
I want to refer to a statement made by the Attorney-General on Second Reading. He said:
If there is a vote, it will be a free vote on this side of the House, and there is no Whip of any kind."—[OFFICIAL REPORT, 31st Jan., 1969; Vol. 776, c. 1725.]
I recall to hon. Gentlemen opposite before they make up their minds this afternoon the words of the right hon. and learned Gentleman. I hope they will not be affected by the efforts of the Chief Whip outside the Chamber at present.

Mr. Alexander W. Lyon: Is the hon. Gentleman saying that hon. Members of the Parliamentary Labour Party are afraid of their Chief Whip? If the hon. Gentleman and his Friends had rebelled against their own Front Bench as many times as hon. Members on this side have, then the status of Parliament might very well have been raised. For him, the craven lackey of his own Chief Whip, to come along here and upbraid us is really too much.

Mr. Griffiths: Far be it from me to enter into the differences between the Government Chief Whip, whom I see balefully approaching the Chamber, and his hon. Friends on the back benches. I suspect that if the hon. Gentleman had seen his right hon. Friend approaching he might not even have made that intervention.
I welcome the Bill because it breathes a little more freedom into the practice of the Press. I do not have an indis-

criminate regard or affection for the Press. I do not think that it is the best in the world. It has responsible and irresponsible editors, good and bad reporters. I am glad that during the stages of the Bill there has been a conspicuous lack of that fawning which hon. Members too frequently show towards Fleet Street whenever journalism is discussed. For once we have discussed the problems of the Press objectively. My hon. Friend has, to his credit, brought very nearly to completion a Bill which, while it will not resolve all the problems, will certainly resolve some of the difficulties confronting working journalists.
I am sure that it is right to relieve the Press of some of the difficulties about contempt proceedings. What remains in Clause 1 is marginal. The Attorney-General is simply required to give his consent before proceedings for contempt are brought. I would have preferred Clause I as it originally stood, but I recognise my hon. Friend's good sense and openness to argument in accepting the Amendment. I am sure it is right that the Attorney-General should have to give his permission before contempt proceedings are brought.
I speak from personal experience, because I suspect that I am the only hon. Member of this House who has been cited for contempt before the Lord Chief Justice, and who was charged by the Attorney-General of the day, then discharged without a stain on his character. I am very proud to be able to say that, and to say as well that in my later life, having come more centrally into the political arena, I am quite confident that the Attorney-General of the day, if this Measure had existed in the form that it now exists, would not have given his consent to those proceedings.
From personal and practical experience, the Clause, emaciated as it is, will be of material assistance to the Press. Clause 2 is clearly a further advance. It meets the difficulties of the gagging writ. Lest hon. Gentlemen opposite argue that this is not as large a problem as it may seem, I put this to them. The problem is very often not that the Press is brought into court either for contempt or for anything else, it is rather that, like most of us as ordinary citizens, it refrains from doing things that might


render it liable to difficulties if it were to do them.
I have had personal experience of knocking out of newspaper copy in the United States matter that seemed to me to be perfectly proper to be published, of interest and pertinent, and which was published in the United States and almost all the other European countries, but which I thought it best to knock out of the copy for the British audience alone. This was because of an anxiety that the particular aspects of the British law would render the publication of such material liable to difficulties.
I am not for a moment suggesting that the British law is in any way inferior to that of other countries; on the contrary, I believe it generally to be superior. I hope that hon. Gentlemen will recognise that there is a practical problem here, of editors having to expunge from their publications matter that is pertinent and relevant to the British scene, because of their anxieties, sometimes unnecessary, about what might happen in this country.
Clause 3 dealing with Official Secrets, is clearly a delicate matter. In Committee, we had some interesting debates. I am not entirely happy with the Bill as it stands in this respect. Nevertheless, it is an advance in such a crucial matter. Further it is the only advance that we have. It is not enough for the Government to say that they have set up a committee which is looking into it and sooner or later will report.
The whole country is full of committees looking into problems and waiting to report. What we have here, in this Parliament, is a bird in hand. In my view, the bird in the hand is very much better than any bird in the bush that the Government may tell us about, but which we are entitled to doubt will ever be brought forward while this Parliament is sitting.

Mr. Speaker: Order. Any bird in the bush would be out of order on the Bill.

Mr. Griffiths: I have my bird firmly in hand and I undertake not to release it, Mr. Speaker.
Clause 5 will be of particular interest to the Press and broadcasting. It is wholly wrong that matter arising in foreign courts and foreign legislatures should be

capable of being suppressed from the British public. We have had detailed discussion on this point. Surely a fair and accurate report of any proceedings in public of a central or local legislature ought not to be suppressed from the people of this country. It is only a matter of years before, in any event, the orbiting satellites will be making available to the world matter that goes on in the American Senate Foreign Relations Committee, in the Australian Parliament, in the Iranian Majlis, and it is wholly wrong for us to close our eyes to what is happening in technology and to say that the British, uniquely, shall be prevented from receiving this matter.
If the Bill is passed, as I hope it will be, it will engender a little more freedom and a little more certainty in the editing and reporting of the news for the British subject. I would like to congratulate my hon. Friend in his very great success in having brought the Bill this far. I hope that his efforts will be crowned by the House giving it the Third Reading that it deserves. If the Attorney-General has any further difficulties with it, I am quite sure that they will be capable of being ironed out in another place.

2.40 p.m.

Mr. Roebuck: I assure the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), my professional brother, that the Chief Whip on this side has not exerted any pressure—certainly not on me—to vote in any particular way in this debate. That is not how we on this side behave. We preserve all the proper Parliamentary traditions.
I speak on the Bill as a somewhat proud follower in the representation of Middlesex, of John Wilkes. I rather suspect that were John Wilkes with us, he would be sitting on these benches and not on those opposite.
I agree with a great deal of what the hon. Gentleman for Bury St. Edmunds has said, particularly about satellites. They represent a serious problem which will come up over the next year or two. Nevertheless, I seemed to detect in the hon. Gentleman's speech a wish that we could, perhaps, advance more towards United States methods—

Mr. Eldon Griffiths: indicated dissent.

Mr. Roebuck: The hon. Gentleman indicates that that is not so. I am glad


of that, because the last thing we want in this country is that system. I am glad that the Bill does not push us in that direction.
The hon. Gentleman said that the Bill has resolved some of the difficulties of the Press, but I am not entirely persuaded that it has. I prefer the view of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), who suggested that it would not be of much practical help. The theory behind it may be right, and is to be applauded, but on the practicalities I do not think that it helps the Press in the way suggested.
The hon. Member for Birmingham, Hall Green (Mr. Eyre) referred to the silencing and gagging writ. This is something of which the newspaper which is sure of its facts and has courage need have no fear at all. There was in the 'twenties a notorious swindler who had been pursuing his activities in this country and had then departed to the United States. When he came back, the Daily Mail, which had been making some investigations of him, wrote an article to this effect, "We observe with some surprise that the arch-swindler Doe"—that was not the man's name—"has returned to these shores. How this man can have the audacity to do so in view of the facts we have given our readers, we do not understand." Doe then issued a writ against the Daily Mail for libel, following which the Daily Mail published an article to this effect, "The arch-swindler Doe has had the impertinence to issue a writ against us. If he thinks that this will silence the Daily Mail in pursuing its public duty, he has another think coming."
Proceedings were issued for contempt against the Daily Mail. The judge in the case said that if only half of what the Daily Mail had printed were true, the Daily Mail had done a public service. The action for contempt was thrown out. That case was heard in about 1923, but I am advised that that is still the position in law.
It is no bad thing that newspapers should be compelled to be absolutely sure of their facts before a man's character is destroyed. Newspapers are very powerful instruments, and in many cases the citizen may have a great deal of difficulty when thrown up against a newspaper, because legal aid is not avail-

able. The Bill will not help the newspaper which is sure of its facts and has courage.
The hon. Gentleman the Member for Bury St. Edmunds suggested that this Measure will help in cases of contempt of court, but, again, I doubt it. It is, alas, not well understood in many newspaper offices that it is quite legitimate to criticise a judge provided that it is not done with malice and there is no bearing on subsequent proceedings. It it quite open to any newspaper which feels aggrieved, or feels that the public ought to feel aggrieved at the way in which a judge has behaved, in good faith to criticise the judge—even in stern language. That being the case, I am not persuaded that the Bill will greatly assist there.

Mr. Eyre: The main purpose of the Bill is not aimed in the direction mentioned by the hon. Gentleman. It is aimed more at the Savundra type of scandal, where there is the possibility of criminal proceedings pending, but perhaps still months away, as in that case. In the meantime the fraud continues, and the Press and radio and television are afraid of commenting on the developing scandal because of the perhaps unjustifiable fear that they will be involved in contempt proceedings.

Mr. Roebuck: The Bill does not do all that is claimed for it, but I concede that the hon. Gentleman has a valuable point there.
On the other hand, I am moved towards the Bill because it continues the system under which juries assess damages for libel. There would be something incongruous if it did not, when what we are discussing is a Freedom of Publication Bill. It is to the juries, and not to the judges, that the Press and the nation owe their present freedom to criticise the Executive. One of the little errors that people make on this subject is to think that the judges are responsible for our freedom.
That such is not the case was established in the 18th century, when Lord Mansfield sought to persuade a jury that a journalist was guilty of an offence when he said that the King did not know the language of truth until he heard it in the complaints of his subjects. The accusation was one of seditious libel. The


jury remained locked up for a very long time, but defied that great judge.
I am moved, as I say, towards supporting the Bill because it retains that present procedure: damages must be a matter left to juries rather than the judges, because juries can make a commonsense approach. I would rather have those people on the top deck of a bus to Clapham, or in the tube train to Stanmore, in my constituency, than any number of red-robed judges deciding such issues.
On that aspect, I adopt some of the observations made on Second Reading by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). I should here remark that my hon. and learned Friend has asked me to apologise for his not being here today. His wife is sick. He had hoped to take part in the debate, and has asked that the reason for his absence should be made known.
There is a powerful reason why it is good that the Bill continues the present system. The current issue of the United Kingdom Press Gazette has the following report:
Assessment of damages by juries in libel cases is in newspapers' own interests, Peter Carter-Ruck, senior partner in newspaper and libel law solicitors Oswald, Hickson, Collier and Co., told the Institute of Journalists on April 28.
He said he would prefer a jury in three-quarters of the cases in which he was acting for the defence. In the last three years there has been no jury award of more than £5,000 damages, while only the previous day a judge sitting alone had awarded £7,000 against a newspaper.
It is, therefore, in the interests of newspapers as well as of others that this system should be continued—

Mr. Eyre: rose—

Mr. Speaker: Order. I hope we are not to debate what has already been removed from the Bill.

Mr. Roebuck: I had no wish to do that, Mr. Speaker, but I hope that you will allow me to make a passing reference, because it is implicit in the Bill—

Mr. Speaker: I will allow a passing reference: I thought that the debate on what the House has already disposed of was about to begin again.

Mr. Roebuck: In fact, I was about to sit down.
Like my hon. Friend the Member for Aberdeen, South, I am still a little undecided about the Measure. Basically, I do not think that it is much good, and I do not see why I should support it; but, if any of those who support it can produce more powerful arguments. I will willingly listen, and may even be persuaded to join them in the Lobby.

2.50 p.m.

Mr. Carlisle: As one of the sponsors of the Bill, may I start by congratulating my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) for successfully bringing the Bill to this stage. Despite what the Attorney-General may say, I sincerely hope that the House will give the Bill its Third Reading.
As a sponsor, I think I am entitled to say that the Bill is a bit like the curate's egg. I do not necessarily go along entirely with all of it and if, for example, the Attorney-General says that Clause 3 needs to be looked at again, I am sure that it can be looked at in another place. Despite that, there are certain minor but important reforms brought about by the Bill.
Clause 1 provides that contempt proceedings can be taken by the Attorney-General, and this is a great advantage. It is accepted that there are problems over the definition of "contempt", when contempt starts, how wide an attack on a judge must be before it becomes scandalising rather than fair comment. The Press would feel that they had much greater protection if the decision whether or not they had over-stepped that line had in the first instance to be taken by the Attorney-General.
The Attorney-General has made it clear to the Press during the passage of the Bill that fair comment on a sentence is, in his view, not contempt. The Press, therefore, knows that the person who has to initiate the proceedings takes that view and it can safely comment without running the danger of contempt proceedings.
The Attorney-General has also said, about the words "imminent and pending", over which difficulty occurs, that in his view the test should be the likelihood of very early arrest. It is because the Attorney-General is able to indicate to the Press in such a manner where the lines are drawn that it is advantageous that the Attorney-General should


be the first to give permission for contempt proceedings to be brought.
At one time I acted as part-time lawyer on the newspaper which then employed the hon. Member for Harrow, East (Mr. Roebuck). It is all very well for him to say that one need not worry about a gagging writ, that one can go ahead and publish. He well knows that the lawyer is approached and the reporter says, "If there is any doubt about it, it must come out". Even if an arrest is imminent the reporter says if there is any doubt it should be left out, because of his justifiable fear of the consequences. This argument applies equally to the gagging writ. It may be that the Sunday newspaper would not be stopped by the insurance company writ but because it was afraid of the consequences of contempt.
Clause 3, I welcome. It throws new light on the Official Secrets Act, although the Attorney-General may have reasons for taking the opposite view. Clause 4 is an excellent Clause, which has been partly fathered by the Attorney-General. The mitigation of damages is a very important matter. I agree with my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) that Clause 5 makes welcome minor changes, and this applies also to Clause 6.
Coming back to Clause 1, one of the reasons given by the Attorney-General for not wishing to have the power to initiate contempt proceedings is that he does not wish to narrow still further that area of the criminal law in which the individual citizen can start proceedings. This I find somewhat strange, coming from a member of an Administration whose Home Secretary during the passage of the Criminal Justice Bill did not hesitate, in Committee, to push in Clause 25, the whole purpose of which was to prevent an individual from taking proceedings under the Obscene Publications Act.

Mr. Speaker: Order. This is a Third Reading debate on this particular Bill.

Mr. Carlisle: I quite agree. I was using as an analogy what had been done on that occasion and how that Bill had been used to prevent a private Member from taking prosecutions, following the successful prosecution by my hon. Friend the Member for Wimbledon (Sir C. Black). The argument is now

turned round the other way and it is said that that is why the Attorney-General does not want to use the powers.
I hope that the House will give the Bill its Third Reading. It has good features, it attempts to strike a fair balance between the Press and the individual, and it gives protection to the Press in its necessary campaign to expose fraud.

2.55 p.m.

Mr. Alexander W. Lyon: I am always pleased to differ from the hon. Member for Runcorn (Mr. Carlisle), as I do on the Bill. Before coming to the reasons for doing so, I join with other hon. Members in congratulating the hon. Member for Birmingham, Hall Green (Mr. Eyre), on sponsoring the Bill and on the way in which he has conducted the Bill through Committee and Third Reading. He has shown felicity of phrase and a great aptitude for timing in ensuring that the Bill moved to Third Reading at good pace.
Although I oppose the Bill, I do not do so, in the somewhat acid phrase of the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), because my Chief Whip told me to; still less do I do so because, as the hon. Member for Runcorn suggested, I am beholden to the Attorney-General. I do so because from the moment that it was introduced I have had my reservations about the Bill.
It is not that I am not in favour of the kind of proposals that such a Bill might have put forward. I agree with other members of the legal profession and with the Press that there are aspects of defamation, of the Official Secrets Act and of contempt where greater clarity of definition and amendment of the present rigours of the law might be of advantage.
Whenever we talk about the freedom of the Press, which the Press does ad nauseam, we are also talking about the freedom of some other individual. The freedom of the Press to comment implies the lack of freedom of someone else, and this is inevitable in any society. If licence is given to one of a number of individuals to do something, almost inevitably that is at the expense of someone else. Always in this classic debate which has waged since the 18th century between the Press and authority one is


faced with the problem of where to strike the balance, and that is what the Bill is really about.
Mr. Speaker, you ruled in your wisdom that we could not take an Amendment which I put on the Notice Paper to provide that the Bill should not come into force before the coming into force of legislation giving a right to the individual to defend himself against intrusion into his personal privacy. I accept that, but it is that feature of this Bill which most perturbs me. The balance between the individual and the Press is being slightly weighed once again in favour of the Press. I do not believe that we have the most hand-tied Press in the world. I think that the Press in our society is one of the most powerful instruments there are—in many ways as powerful as the Executive itself, and, in relation to the individual, far more powerful.
By casual word, by little sentence, which someone like the hon. Member for Bury St. Edmunds or the hon. Member for Harrow, East (Mr. Roebuck) may import into an article, the Press can destroy the prospects, the life and happiness of some individual, whose only redress is the law. It is the law which fundamentally supports the little man against this power which otherwise would be unfettered. Therefore, the legal restrictions upon the right of the Press to comment should be secured so long as there is no compensating balance for the individual.
For about two years I have been campaigning for a law of privacy. I do not want to go into that in detail now, because I know that it would be out of order. All I say is that I would welcome much more the proposals in the Bill if they were part of a general approach to this problem of where the balance should be struck. Traditionally, we have struck the balance by using the law of defamation, the law of contempt and to some extent—though it is not so clear—the official secrets law, to preserve the rights of the individual.
It would have been much better if, in the days when the common law was coming out of gestation, the common law judges had thought much more clearly about the right of the individual to defend his privacy rather than his property. The

balance would, therefore, have been struck at the point where it really ought to have been struck—in relation to what it is about my own personal life that I want to keep secret and how far it is right that anybody else should have the right to pry into what I want to keep secret.
That balance is hopelessly weighted in favour of the Press at the moment, and until it is redressed I do not want to see any further relaxation of the law which binds the Press. That is what the Bill does. If the two were coming together I might take a different view.
I see that you are somewhat restive, Mr. Speaker, and, therefore, I shall deal with each of the Clauses as quickly as possible, suggesting how, in my view, the balance has been tipped slightly in favour of the Press. In Clause 1, as it stands after the Amendment, there is little change, but such change as there is is against the interests of the individual. It is perfectly true that there are occasions when a legal remedy is available only via the Attorney-General, and on a recent occasion we changed the law in relation to obscene publications.
However, in relation to contempt I am concerned not only about the right of the court to carry out an impartial review of whatever the allegation is, but about the right of the individual who uses that court in order to buttress his inadequate power against someone who otherwise has great economic and social power. He must have the right, if need be, to see that the court is also protected because otherwise he cannot hope to get impartial justice.
Therefore, there comes a moment when he may think that he will not get a fair trial, or that some comment which has been made will be prejudicial to his interests inside the court, but that is not how it strikes the Attorney-General. In most cases this is the practice followed. It is a very rare dilemma for the individual.
Most of the contempt cases have been brought by the Attorney-General. As my right hon. and learned Friend pointed out in Committee, he himself has only once brought proceedings. But, as he also pointed out, the fact that he must make the decision has meant that he has erred more in favour of the Press, simply because he knew that if he made a mistake


individuals would have the right to seek redress in the courts. Under the Bill, they will not.
It may be that one is sometimes dealing with a vexatious litigant and sometimes with a man who wants to use the court for reasons which are beneath contempt. None of us would like to defend the way in which the fraud uses the mechanics of the law to defend his fraud. But one may not be dealing with such people; one may be dealing instead with a perfectly innocent individual who has been grossly abused by the Press in regard to proceedings which are either imminent or pending. We, making the decision here today, do not know which type of person it will be. We take on ourselves the judgment that the decision will always fall in favour of the Press against the rogue, but we do not know.
We may be taking away the right of a perfectly innocent, unblemished individual to use the court to maintain and defend his good name. I do not want to do that unless there is a compensating advantage to the individual, and there is none in the Bill. That and its like predecessor, the Defamation Act, 1952, are the only attempts in legislation to give the Press a particular privilege in law which is not afforded to the individual. In every other respect, the individual is in the same position. It seems to me that the Defamation Act itself represented a tipping of the balance in favour of the Press, and I do not want to see it go further in the Bill.

Mr. Eyre: I am not out of sympathy with the hon. Gentleman's basic plea, but it seems to me that extra help must be given to the Press in dealing with the particular responsibility of informing the general public about what is going on in so many trade transactions. I think that he would quickly give power to the Board of Trade if it were possible for it to deal with the situation, but it is not. I merely ask him to consider giving extra help to the Press in this respect.

Mr. Lyon: The hon. Gentleman has in his mind that the Press is the only bastion of liberty in this country, but, clearly, it is not. He recognised that when the point was put to him. I, he, you, Mr. Speaker, are just as entitled, if we have evidence of fraud, to declaim that evidence to the public and use what-

ever means are available to us to see that the public know about it. As Members of Parliament, we have a specific responsibility where we discover a fraud that the Press may not know about. Why is it that the Press should have this power of exposure, but not us?

Mr. Speaker: Order. The hon. Gentleman can criticise the Bill, but he cannot widen the debate into the rights and privileges of Members of Parliament.

Mr. Lyon: With respect, I am seeking not to widen the debate but to answer the point put to me by one of the sponsors of the Bill. The hon. Member for Hall Green said that we need the Bill to preserve the right of the Press to seek out fraud. The same argument would apply to the individual, and I see no reason why the Press should be treated any differently from any individual. If it is right for the Press, it is right for the individual. If it is not right for the individual, it is not right for the Press.
Clause 2 is one on which the sponsors of the Bill have placed some reliance. True, if one takes an example like the insurance fraud which the hon. Member for Hall Green advanced as his justification for the Clause, one can see the logic of it. That is why I said initially that, if this were an academic seminar at which we were discussing what is was appropriate to do in relation to the law, this might well be a matter on which I should express some sympathy for the proposal. But, again, I put the point which I put in regard to Clause 1.
It is all very well to say that this will stop the gagging writ. So it will. But it will stop the gagging writ when the person who has been defamed is completely blameless. It will not only stop the gagging writ in the case of Dr. Savundra; it will stop it in the case of the innocent person.

Mr. Carlisle: That is not so, because it in no way prevents anyone who is being unfairly attacked from immediately applying for an interim injunction and also having repetition of the libel recognised by a higher award of damages.

Mr. Lyon: With respect, the hon. Gentleman has put the point to which I was coming. I said that it would do it


for the innocent person as for the rogue—if it will do it at all. That is my doubt—if it will do it at all.
The hon. Gentleman says that at present a newspaper is precluded from talking about a matter of fraud by the fraudulent person taking out a gagging writ for defamation which he probably does not intend to pursue. But, as my hon. Friend the Member for Harrow, East cogently pointed out, there is nothing to stop the newspaper going on even against a gagging writ. If the assertion contained in the newspaper reports are true, if they are fair and balanced, no one will expect that newspaper to be brought before the court for contempt.
In Committee, the Attorney-General explained how infrequently this power is used; and so it would be even if there were an attempt by a fraud to use the gagging writ to silence comment about his affairs.
This was so in the case to which the hon. Gentleman pointed, and it is so today. The difference is that in the case to which the hon. Gentleman pointed the newspaper had the courage of its convictions and it also had the facts on which to base its allegation. If I may say so, I know that it is not his intention, but the effect of what the sponsor wants to do in this Clause is to give the power to a newspaper which has neither the courage of its convictions nor the facts on which it bases its allegation. In my view, that will lead to the sort of "yellow" journalism which I do not want to see in this country. There is enough of it already, goodness knows.
Anyone who reads the majority of the Sunday Press knows only too well how ludicrous are the tears shed for the poor journalist who cannot express himself sufficiently savagely. I ask hon. Members to look at the popular newspapers published on a Sunday. If the People were to base its assertions only upon what is factual, what is fair and what is reasonable, it would never come out.
The truth is that we have here a tipping of the balance seriously against the individual. If the individual is a fraud, and if the newspaper knows it and has the facts as distinct from the suspicion that that is true, there is no reason why it should fear.
Now, Clause 3, which deals with the vexed question of official secrets. I have heard what the sponsors have not had to say on this Clause on Third Reading, and I read what they said in Committee.
I notice their delicacy about the matter. Even they recognise that, as it stands, it is quite unworkable. One cannot leave to a dispute in open court the question of whether the revelation of an official secret is in the public interest. If it is revealed, the whole object of the Official Secrets Act is lost.
The difficulty about the right of judges to look behind a ruling by a Government Department that it was not in the public interest to disclose certain documents was that if the judge had to look at the matter and consider the question in open court it was valueless to try to preserve the privacy of the State.
I have spoken of the balance between the individual and the Press. It may be said that I am speaking not on behalf of the individual but on behalf of the most powerful authority in the country, the Executive. So I am, and I recognise the difficulty of that argument. But the Executive does not exist for itself alone. When it does, I shall be entirely in favour of a relaxation of the Official Secrets Act so that the public shall know what is going on behind the scenes.
If all the Official Secrets Act is designed to do is to cloak the mistakes of Ministers, then it is much better that there should be open and free discussion. To that extent I support the theme of the Fulton Committee Report. But the Government concede that. They are prepared—and I will leave time for the Attorney-General to tell us about it—

Mr. Carlisle: The hon. Gentleman has already spoken for 21 minutes.

Mr. Lyon: I am sorry, but I thought that we were talking about freedom. The hon. Member for Runcorn (Mr. Carlisle) wants to gag me with one of his writs. I hope that he will do me the courtesy of agreeing that in the 20 minutes during which I have spoken I have not in any way tried to conduct a filibuster. I have made valid points about the Bill.
If the hon. Gentleman disagrees, well and good. I do not want to delay the matter further.

Mr. Carlisle: rose—

Mr. Lyon: The hon. Gentleman cannot have it both ways. Either I am delaying the House, in which case I will allow the intervention, or I will not delay the House. I was intending to deal with the problem of the Official Secrets Act.
The problem would arise for instance in regard to the question of chemical warfare. During the C.N.D. demonstrations there was a discussion about the whole problem at the Old Bailey. One of the C.N.D. demonstrators was brought before the court on the ground that he had breached the Official Secrets Act in disclosing matters about defence organisations.
He sought to use the court as a means of propagating his views against the defence establishments by opening up the whole discussion of whether it was in the public interest that they should exist. By the provision of this Clause he would have had the right to discuss them, but the judge ruled him out of order.
If the Clause is accepted, our rights as individuals collectively as a community can be undermined; our security can be endangered by an open discussion in a public court as to whether it is in the public interest that the matter should be ventilated.
Where the Press is engaged, who can say what it might or might not regard as being within the public interest? It is still a matter of very great controversy as to whether the "D Notice" affair, discussed in this House about two years ago, was a question where the legitimate rights of the Press were invaded or where the legitimate rights of the community, in the person of the State, were invaded. That discussion had, in the end, to take place on the Floor of this House, which was perhaps more public than a public court. In my view, whatever the rights and wrong of that decision, there are certain areas of government where it would be totally inappropriate for the matter to be discussed in open court.

Mr. Edward Lyons: What has my hon. Friend to say about the rights of judges to declare proceedings in court to be in camera?

Mr. Lyon: That is one way of limiting the damage that might be done. However, anyone who thinks that, with a highly controversial matter being dis-

cussed in camera, when highly important and confidential State secrets are being discussed they would not ultimately find their way into the Press has more trust in the security of the courtroom than I have or, as a parallel example, more trust than I have in the security of the Parliamentary party meetings.
Since I have been accused of delaying the House, I pass over Clauses 4 and 6. I have reservations about Clause 6, but they are not as strong as those on some of the other Clauses. I am concerned about Clause 5 which would allow the publication in any British journal of any fair and accurate report of any proceedings before a court exercising jurisdiction in any territory outside Her Majesty's Dominions, and any fair and accurate report of any proceedings in public of a central or local legislature in any territory outside Her Majesty's Dominions. In principle, there is much to be said for this, but it is also true that, whereas the laws of other countries differ about the extent of defamation and the protection afforded by the law of defamation, it would be possible to say things in court or in the course of legislative proceedings elsewhere which it would not be possible to say in this country.
In such circumstances it might be possible for the statement to appear in this country when it would not otherwise be possible for this to happen. That is not necessarily a great help to the individual, although I recognise that it is perhaps a fear which relates only to a very small and hypothetical number of cases, and is not of the more widespread nature of some of the earlier examples in other Clauses.
I have finished with the definitive parts of the Bill—

Mr. Eldon Griffiths: The hon. Gentleman will recall that earlier in his speech he disagreed with me that his Chief Whip had entered into his calculations. Would he accept that there are two ways of killing a Bill? One is the courageous way of voting against it, and the other is covering it with verbal foam.

Mr. Lyon: Of course there are, but if the hon. Gentleman is saying on this occasion that I am adopting the latter procedure—

Mr. Eldon Griffiths: Yes.

Mr. Lyon: —then he is entitled to his opinion, but he is wrong. In my view this Bill ought to be killed, and I am quite prepared to vote against it. If the hon. Gentleman wants to use that for his column in the Evening News next week, he is entitled to do so. I am entitled to oppose the Bill in any way that I seek if I think it is wrong, and I think that it is wrong.

Mr. Dewar: I am interested in the arguments being used by my hon. Friend. I cannot say that I entirely agree with him in his interpretation of Clause 5. I think that the door was truly closed by the judgment in Webb v. Times Publishing Company, when it was said that there had to be legitimate and proper interests and the publication was not due to idle curiosity and a desire for gossip. With that judgment in mind there is little danger of abuse at present, or, therefore, change.

Mr. Lyon: There is little danger under the law as it exists, but the law is to be changed by this Clause. Let us face the consequences of the passage of the Bill.
I conclude on the note that I began, that it is about Clause 11(2) that I have the deepest reservations. The Amendment which I sought to make has not been accepted, but it lies within the power of the Lord Chancellor to delay the implementation of the Bill if it ever succeeds in becoming an Act. In my view it would be desirable that he should do so, as long as there is no law to protect the individual against intrusion into his privacy. When that is available I shall accept the Bill, with all its warts, but until that is done I must vote and speak against it.

Mr. Hugh Delargy: Will my hon. Friend say something about Clause 11? He has talked more sense about the Bill than I have heard in any other speech this afternoon.

Mr. Lyon: I am grateful to my hon. Friend.

3.27 p.m.

Mr. Sharples: I intervene briefly to add my congratulations to my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre), on having introduced the Bill

and having seen it through its various stages. It may be that the House will be prevented from reaching a decision on the Bill this afternoon, but if that happens it will be in accordance with what happened to similar Bills on this subject which were introduced in the past.
I think that it is now almost beyond dispute that there is a need for legislation on this subject. The report of a committee sponsored by Justice was debated in another place in May, 1965. At that time, after a strong case had been made for legislation, the Lord Chancellor used the usual excuses offered by the Government on occasions of this kind, when he said:
I am afraid there can be no question of legislative time being found in this Session for a reform of this branch of the law. The Government have not yet made up their minds what, if any, reforms in this branch of the law there should be."—[OFFICIAL REPORT, House of Lords, 25th May, 1966; Vol. 274, c. 1435.]
That was almost exactly three years ago to the day. Surely by now the Government should be in a position to decide what changes should be made in the law, or else be in a position to give the House a firm direction that there is no need for any change at all.
What has happened with this Bill, and what happened to the two previous Bills introduced by my hon. Friend the Member for Ludlow (Mr. Moore) is that progress has been blocked. At this stage, at half-past three on Friday afternoon, it becomes fairly clear to anyone who has listened to this debate and to what has gone before that the Bill is likely to share the fate of the Bills previously introduced by my hon. Friend. I have little doubt that if the Government so wish to organise matters so that the Bill is talked out, hon. Gentlemen opposite will be capable of talking it out.
I maintain that there is a strong case for a Bill of this kind. Perhaps a private hon. Member faced with the difficulties of drafting a complex Measure such as this may not draft a Bill which is perfect in all respects. Nevertheless, I share the view expressed by my hon. Friend the Member for Runcorn (Mr. Carlisle) that the main difficulty which faces the Press in dealing with difficult cases—for example, the Savundra case—is the uncertainty of where it stands in law today


The Attorney-General will no doubt shortly give us the Government's view of the investigation which is taking place into the Official Secrets Act. However, it is in regard to the law of contempt, and particularly the law relating to that Act, that the main uncertainty of the Press, and of those who work for the Press, needs to be resolved. On Second Reading the Attorney-General said:
The Bill raises many interesting and important questions touching the delicate balance which, in a free society, must be drawn between the Press, on the one hand, and the individual citizen, the courts, and the Executive, on the other".
He went on:
In my view, the Bill needs very substantial Amendments indeed if it is to reach the Statute Book."—[OFFICIAL REPORT, 31st January, 1969; Vol. 776, c. 1724–5]
Bearing in mind the difficulties which face a private hon. Member in drafting a Bill of this kind, one is entitled to ask what assistance was given by the Attorney-General and his Department to my hon. Friend the Member for Birmingham, Hall Green in his efforts to improve the Bill.
If one studies the Order Paper today, one sees that nearly all the contributions made by the right hon. and learned Gentleman in a so-called endeavour to improve the Bill by way of Amendment are represented by a series of wrecking Amendments—[Interruption.]—to leave out every Clause. The House and the country will have noted that a Division was forced by hon. Gentlemen opposite on an Amendment to delete Clause 7, when the Attorney-General must have known that that Amendment was purely consequential on an Amendment which had previously been rejected.

Mr. Alexander W. Lyon: rose—

Mr. Deputy Speaker: Order. Before there are any interventions, I warn hon. Members that Clause 7 is no longer in the Bill and that it is, therefore, not in order to discuss it on Third Reading.

Mr. Lyon: I intervene only because the hon. Member for Sutton and Cheam (Mr. Sharples) has been caustic about the effect of Amendment No. 13. I wanted to—

Mr. Deputy Speaker: Order. The hon. Gentleman is pursuing a matter which is out of order.

Mr. Lyon: I had not intended to do so, Mr. Deputy Speaker. I merely wished to call attention to the fact that when that Division was called, 16 hon. Gentlemen opposite were in their place but that I do not recall the hon. Member for Sutton and Cheam being present.

Mr. Sharples: I will not pursue that, except to point out that I was one of the Tellers in that Division.

The Attorney-General: I hope that the hon. Member for Sutton and Cheam (Mr. Sharples) will not further his disorderly references to Clause 7, in which he has spoken in intemperate words about alleged tactics. I hope that he will not pursue the matter further because his remarks are wholly unjustified.

Mr. Deputy-Speaker: Order. I hope that no hon. or right hon. Member will pursue the matter further.

Mr. Sharples: I say only this, by leave of the House: those who have listened to the debate will be able to draw their own conclusions.

Mr. Peter Mahon: rose—

Mr. Sharples: I will not give way to the hon. Member. He has not been here during the debate.

Mr. Simon Mahon: On a point of order, Mr. Deputy Speaker. The hon. Member for Sutton and Cheam (Mr. Sharples) has spoken in derogatory terms about my hon. Friend the Member for Preston, South (Mr. Peter Mahon) suggesting that he has not been in the Chamber. May I point out that, unlike most hon. Members, my hon. Friend was even here for Prayers today.

Mr. Deputy-Speaker: Order. I hope that we shall return to Third Reading.

Mr. Sharples: I do not think that the hon. Member for Preston, South has been here for the greater part of the debate.
In conclusion, no matter what happens to the Bill this afternoon, this is not and cannot be the end of the matter. My hon. Friend the Member for Hall Green spoke of our work in the Conservative Party on these matters. It will fall to us, I believe before long, to put into practice the ideas which we shall have and to introduce a Bill of our own.

3.36 p.m.

The Attorney-General: I am surprised at the tone and content of the remarks of the hon. Member for Sutton and Cheam (Mr. Sharples) because the biggest vote that the supporters of the Bill were able to muster in a Division was 27, and had it not been for the fact that my hon. Friends were present in sufficient number, the debate would have died about two-and-a-half hours ago. In my submission, therefore, his observations, to say the least, have been churlish in circumstances in which the sponsors of the Bill were unable to muster enough support to keep the debate going. I repudiate entirely any suggestion of any obstruction in the discussion of the Bill by the House.

Mr. Simon Mahon: My right hon. and learned Friend has spoken about the promoters of the Bill not being able to gather sufficient numbers to mount a Closure on a matter as important as the Bill. This has happened on successive Fridays when supporters of another Bill have been unable to mount a Closure. We suggest that the sponsors of the Bill see the Government, who might give them more time for it.

The Attorney-General: It is an excellent thing that the House in Committee and on the Floor has been able to discuss the law of contempt, the Official Secrets Act and libel. It is the case that the Government have set up the Salmon Committee to investigate an important aspect of the matter in relation to contempt of court proceedings before tribunals of inquiry under the Tribunals of Inquiry Act and we await with great interest that report, which may well give us some valuable guidance on the law relating to contempt. I for my part welcome the setting up of a study group by the Opposition under the leadership of the right hon. and learned Member for Epsom (Sir P. Rawlinson), and it may well be that in the next Parliament, when we shall still be on this side of the House, we shall find some useful guidance from the deliberations of the undoubtedly eminent libel experts and others who are participating in that work.
But while I commend the energy and ability with which the hon. Member for Birmingham, Hall Green (Mr. Eyre) has launched and persevered with the Bill, I greatly regret that, applying my best

will to the matter as Attorney-General, I find the subsisting Clauses of the Bill, or several of them, so wholly objectionable in principle that I must advise the House to reject the Motion for the Third Reading. I shall try to deal with the matter at not too great a length, and I go straight to Clause 1.
The House has deleted the first part of the Clause. I was asked by the hon. Member for Sutton and Cheam (Mr. Sharples) what assistance my colleagues and I had given the sponsors of the Bill. He will have seen that Clauses 4 and 6 have been re-cast. This has resulted from Governmental assistance. Unhappily, our view was that the attempted redraft of the law by Clause 1 was, first, unnecessary, and, second, totally ineffecive and injudicious.
We are left with the second part of that Clause, which proposes to take from the citizen what he may regard in a given situation as an important right; namely, that he should have power to take contempt proceedings even if the Attorney-General had refused to do so. It will be exceptional for the individual to take such proceedings. They are costly, and there would be no legal aid. In effect, the control over contempt is in the hands of the Attorney-General. But I cannot believe that it would be for the benefit of the citizens at large that in the last resort they should not be able to take contempt proceedings themselves. When I have to take decisions on these matters is it a great comfort to me to know that if the citizen still feels aggrieved he can take his own action. Therefore, touched as I am by the confidence in my office shown by the Clause, I do not think that it is in the interests of the citizenry that the Clause should stand.
Clause 2 deals with repetition of defamatory matter. Its object is to prevent justifiable newspaper criticism being stifled by the issue of a writ for libel followed by the threat that if the defamatory matter is repeated proceedings for contempt will be instituted. The difficulty about the Clause is that if it is intended to remove altogether from the court the power to prevent repetition of defamatory statements by the summary sanction of punishment for contempt, it goes too far. But if its sole purpose is to declare that repetition of a defamatory statement already the subject of a libel action is not


ipso facto a contempt, it is totally unnecessary.
As I pointed out in Committee, the plaintiff in the libel action may have persuaded the court to grant an injunction restraining the defendant from repeating the defamatory statement. In that event, repetition of the statement by the defendant would and should be a contempt of court. I think that that is common ground. Repetition by another person might well also constitute a contempt, particularly if it were done with knowledge of the injunction and the approval of the defendant.
Although the effect of the Clause is not altogether clear, the Clause does not appear to affect that situation because in the example I have given repetition of the defamatory matter would not be a contempt by reason only of the fact that the proceedings were pending. It would be a contempt because of the existence of the injunction.
The argument in support of the Clause that a threat of contempt proceedings can be used to stifle justifiable criticism is not sound. Apart from the objections I have mentioned, a genuine attempt to expose a scandal will never lead to an injuction against repetition. If one is sought but the defendant newspaper is prepared to justify, the possibility of the court's granting the injunction is remote in the extreme. I have given an assurance, and repeat it now, that mere repetition, without more, does not constitute contempt. It is inconceivable that contempt proceedings would be brought by reason only of the fact that the proceedings were pending. This deals with a threat which just is not there. Therefore, in my view, the Clause is at best useless and at worst harmful, it is based on a misunderstanding of the law, and its presence on the Statute Book is undesirable.
Clause 3 deals with the Official Secrets Acts. Its effect would be to amend Section 2(2) of the Official Secrets Act, 1911, by providing a person accused under that subsection with the defence that what he had done was not prejudicial to the public interest. He would be entitled to rely on that defence provided that he had given not less than seven days' clear notice to the prosecution before the commencement of the trial.
The issue of whether or not the defence was established would be decided by the judge alone, and in so deciding the judge would have to take into account, among other things, a certificate of a Minister of the Crown to the effect that the act done by the accused was prejudicial to the public interest. The certificate would not be conclusive, but it would be evidence that the judge would have to take into account in determining the issue pleaded by the defendant of whether or not the defendant's act was prejudicial to the public interest.
I remind the House that Section 2(2) of the 1911 Act makes it an offence for a person to receive any official document or information knowing, or having reasonable grounds to believe at the time he received it, that that document or information was communicated to him in contravention of the Official Secrets Acts—in other words, knowing or having reasonable grounds to believe that the person who gave him the information was himself committing an offence because he was giving it without authority.
The Clause is wholly objectionable to my right hon. Friends and myself for reasons which I have already explained to the House and the Standing Committee. The principle objection—and I share the criticisms made so ably by my hon. Friend the Member for York (Mr. Alexander W. Lyon)—is that if the defendant pleaded that what he had done was not prejudicial to the public interest, it would be for the prosecution—namely, the Crown—to produce evidence to the judge to rebut that plea. To do this, it would in many cases be necessary to reveal secret matters perhaps vital to the defence of the country in order to show in which direction the public interest lay and why the defendant's action had prejudiced that interest. There may well be instances where it is only by explanation of other related matters that it can be proved to the satisfaction of the judge that the defendant's action had prejudiced the public interest. No Government could allow the national interest to be prejudiced by revealing such matters in court.
There is the additional objection that the balance of public interest is not something which can be satisfactorily determined by a judge in a criminal court. It


may well raise issues involving international as well as domestic considerations on which it would not be right to ask a judge to adjudicate. It has been said that the purpose of including the Clause is to ensure that in future the Official Secrets Acts should not be used to muzzle legitimate reporting and discussion of matters which should be brought to the notice of the public, and consequently which it is not contrary to the public interest to publish. I submit that such an argument reveals a fundamental misunderstanding of the operation of the Official Secrets Acts.
As I have said, earlier, there is the greatest difficulty in defining satisfactorily what categories of information should be protected so as not to damage the public interest. It was to meet this difficulty that there was included in the Acts a provision requiring the Attorney-General's consent to the institution of proceedings under the Acts. That provision is not unusual where it has not proved possible to define in a statute precisely the mischief at which the statute is aimed. The object of including the provision requiring the consent of the Attorney-General is to ensure that there should be no prosecution unless the Attorney-General is satisfied, having considered all the information which is available to him, that there is adequate evidence against the accused to justify the prosecution, that the evidence indicates that he has committed an offence against the spirit and not merely the letter of the statute in question, and that it is in the public interest to take proceedings.
As to the Official Secrets Acts—I am quite sure that I can also speak for my predecessors in office, and I see one is here—I would never consent to a prosecution unless I was satisfied that there was adequate evidence that the accused had acted in a way prejudicial to the public interest. It is for that reason that prosecutions under the Acts are rare. Since I have been Attorney-General there have been only 12 such prosecutions. I do not think it would be appropriate for me to explain to the House all the circumstances in which I consented to those prosecutions, but I can assure hon. Members that I am quite satisfied that in each case there was evidence that the national

interest had been, or might have been, damaged.
There has also been a further misunderstanding, I think, about the effect of section 2(2) of the 1911 Act. An offence under this subsection is committed only if the person who received the information knew or had reasonable grounds for believing that the person communicating it was doing so without authority, and consequently, was himself acting in breach of the Acts. It is for the prosecution to prove affirmatively that the defendant had that knowledge, or had reasonable grounds for believing it. Accordingly, the representative of a newspaper or any other individual who receives information from a civil servant need have no fear that he is in danger of prosecution under the Acts unless he knows that the person giving it to him does so without authority, or unless the circumstances in which he receives it are such as to make him suspicious about the authority of that person.
The Acts are concerned only with unauthorised disclosure of information. Any suggestion that they operate so as to inhibit the authorised release of information is unfounded. As hon. Members will recall, the Fulton Committee welcomed in its Report the trend in recent years towards wider and more open consultation before decisions are taken, as well as the increasing production of the detailed information on which decisions are made. It wanted both to be carried further.
The Government have now completed a thorough examination of the whole question of the release of official information. In the course of this they have considered what advances have been made in recent years, what more can be done in future and what safeguards will continue to be required. A White Paper showing the results of this examination and setting out the Government's policy will be published soon after the House returns from the Whitsun Recess. The House will not expect me to anticipate the substance of the White Paper, and I must therefore ask the House to await its publication.
Therefore, Clause 3 in its present form is wholly objectionable and is the fundamental ground for the rejection of the Bill.

Mr. Eyre: Would the Attorney-General say who carried out this inquiry?

The Attorney-General: It was carried out within the Government, within their agencies within the Civil Service, and the hon. Gentleman will see its range when the White Paper is published.

Mr. Eldon Griffiths: rose—

The Attorney-General: I shall be accused of deliberately talking the Bill out.

Mr. Griffiths: The Attorney-General has said something of importance to everyone. After the White Paper has been published does he envisage some legislation?

The Attorney-General: This is a teasing question. The hon. Gentleman will have to wait to see the White Paper. We shall debate it later. I cannot give any further information now to the House.
Clause 4 is good so far as it goes. It effects a minor amendment to the law of libel, and Clause 6 does the same, although it could have been done by Rules of Court. Unhappily, the advantages of those two minor improvements are greatly outweighed by the objectionable Clauses. Clause 5 remains objectionable. It shifts the burden of proof to the person who complains of being libelled in the foreign reports in question. The law as it stands is sound enough. This matter was considered by Parliament when the Porter Committee's Report was debated, and what is proposed in the Clause was rejected then, as it should be rejected now.
Clause 6 is good so far as it goes, but, if the Bill falls by the wayside, the trouble dealt with in the Clause could, if necessary, be dealt with by Rules of Court.
For these reasons, and because of my view that, broadly speaking, the balance of the law of libel is about right between the need of the citizen to have his good reputation protected and the need of the Press to have the right to report, to expose and to do its duty of informing the public, I must advise the House that the passing of the Bill would tilt that balance unfairly against the ordinary citizen, and that the Bill should be rejected.

3.55 p.m.

Mr. Edward Lyons: I do not propose to talk the Bill out, so I shall sit down inside two or three minutes.
Clause 5 is objectionable to me because it enables people in this island to be destroyed by what is said in a foreign legislature. This is wholly wrong, particularly when in that foreign legislature material could be deliberately planted to destroy people in this country.
On Clause 2, if one takes away contempt, it means that a newspaper may risk only damages in saying something which may prove to be untrue, with the result that a man's reputation will be wholly destroyed and will not be resuscitated, since he may or may not get damages a long time ahead, particularly if he has not the money to bring expensive proceedings.
Had I had time I would have made a longer speech, but my hon. Friend the Member for York (Mr. Alexander W. Lyon) dealt in a better way than I could have done with many of the points which I wished to make.
As the Attorney-General has said, the balance is right. There has been much crying out about the working journalist, when the big newspapers are meant. What about a word for the ordinary man-in-the-street, who has great difficulty in getting even an apology from a newspaper unless the newspaper is advised by its legal advisers that it does not have a leg to stand on? There has been very little talk of the individual today, apart from what was said by my hon. Friend the Member for York.
For these reasons, I object to the Bill and will oppose it.

Dr. Ernest A. Davies: I objected to Clause 1 of the Bill after it had been considered in Committee. Although I am not a lawyer, I have spent many hours sitting in court attempting to adjudicate as a justice of the peace, and on reading Clause 1—

Mr. Speaker: Order. We must talk about Clause 1 as it is now in the Bill.

Dr. Davies: Clause 1 as it then stood was objectionable, but it is even more objectionable as amended, and is objectionable even to hon. Members who have


sponsored the Bill. My hon. Friend the Member for Accrington (Mr. Arthur Davidson), who has very considerable experience of the newspaper world, pointed out in Committee that people outside the newspaper world rarely realise the pace and pressure under which editors and members of the journalistic profession work. He argued that that should be taken into account in the Bill. Clause 1 as amended—

Mr. Carlisle: Will the hon. Member give way?

Dr. Davies: Clause 1 as amended will leave an editor in exactly the same difficulty about time as the original Clause. The situation seems to be now that not only have we got a bad Bill in respect of other Clauses but we have one which does not meet the intention of the original sponsor.

Mr. Carlisle: Will the hon. Gentleman—

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Friday, 13th June.

Orders of the Day — DIVORCE REFORM BILL

Order read for resuming adjourned debate on Question [2nd May], proposed on consideration of Bill, as amended (in the Standing Committee).

Hon. Members: Object.

Debate further adjourned till Monday next.

Orders of the Day — NATIONAL INSURANCE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — AIR TRANSPORT LICENSING ACT 1960 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — INDUSTRIAL INJURIES (INDEPENDENT CONTRACTORS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — EXPORT OF MANUSCRIPTS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — LABELLING OF FOOD AND TOILET PREPARATIONS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — EQUAL PAY BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — JURY VERDICTS (SCOTLAND) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — CONTRACTS OF EMPLOYMENT BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — MENTAL HEALTH ACT 1959 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — ESTATE DUTY (SURVIVING SPOUSE) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — BRITISH STANDARD TIME ACT (REPEAL) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — LIVE HARE COURSING (ABOLITION) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — AGRICULTURAL TRAINING BOARD (ABOLITION) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — CRUELTY TO ANIMALS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 20th June.

Orders of the Day — CUSTOMARY HOLIDAYS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — HOUSING (LOCAL AUTHORITY CONTRIBUTIONS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — PARLIAMENT (No. 4) BILL

Order read for resuming adjourned debate on Second Reading [18th April].

Hon. Members: Object.

Debate further adjourned till Friday, 13th June.

Orders of the Day — HOUSE OF COMMONS REDISTRIBUTION OF SEATS (AMENDMENT) BILL

Order read for resuming adjourned debate on Second Reading [21st March].

Hon. Members: Object.

Debate further adjourned till Friday, 13th June.

Orders of the Day — AGE LEVEL OF EMPLOYMENT BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — FEUDAL REFORM (SCOTLAND) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — PERIODICAL PUBLICATIONS (PROTECTION OF SUBSCRIBERS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — PROTECTION FROM DOGS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — EXPANSION OF NEW TOWNS (REFERENDUM) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — WORKMEN'S COMPENSATION AND BENEFIT (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — NATIONAL INSURANCE (INDUSTRIAL INJURIES) (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — BORDERS DEVELOPMENT (SCOTLAND) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — RENT ACT 1968 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — HIGHWAYS (STRAYING ANIMALS) (No. 2) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — ORGAN TRANSPLANTS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — CRUELTY TO ANIMALS ACT 1876 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — ROAD TRAFFIC (INSURANCE) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — OBSCENE PUBLICATIONS (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — FREE SPEECH COMMISSION BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — PROTECTION OF OTTERS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — CHILDREN AND YOUNG PERSONS ACT 1963 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — ENTERTAINMENT EMPLOYMENT AGENCIES BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 13th June.

Orders of the Day — MATRIMONIAL CAUSES BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Monday next.

Orders of the Day — MINISTRY OF OVERSEAS DEVELOPMENT (MR. B. H. SPRATT)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ioan L. Evans.]

4.5 p.m.

Mr. W. R. Straubenzee: I am grateful for the opportunity in the short time remaining today to raise the case of my constituent, Mr. B. H. Spratt,

of Wargrave. I thank the hon. Gentleman the Parliamentary Secretary to the Ministry of Overseas Development for his presence here. Perhaps I may add that I have myself flown back to the House by helicopter especially to be here, and that I did not realise what an excellent method of transport that wonderful machine provides.
I imagine that the hon. Gentleman and I will not disagree on the basic facts of the case which I have to make, but, since I have some criticism of the decision to which he came, I make clear at the outset that throughout our lengthy negotiations—this pile of paper beside me shows that they have, indeed, been lengthy—he has always pleaded the matter with great courtesy, as have those who advise him. I gratefully acknowledge that at the outset.
The case began when my constituent answered an advertisement in the Daily Telegraph of 16th March, 1965, inserted by the hon. Gentleman's Ministry advertising for a civil engineer in Barbados. My constituent accepted the offer, after an interview and a medical check, on 18th July of that year, he signed an agreement on 1st August, 1965, an agreement drawn up—I think that this is agreed between us—by the Crown Agents.
On 18th Sept., 1965, my constituent arrived in Barbados with his wife and three children after having, naturally, sold up his home in this country. It was at that point that his troubles began. He found that the accommodation available for him was at a very second-rate guest house, at his own expense, of course, in spite of the phrase in the advertisement to which I have referred
Furnished Government quarters at moderate rental".
The chief personnel officer of the Government there had no idea when these furnished Government quarters would be available. My constituent was, therefore, thrown on to his own devices, and eventually he found a three-bedroom bungalow at a rent equivalent to £720 a year.
I mention that figure because the Ministry's letter of 13th July, 1965, an important letter in this case, quoted a figure of between £75 and £138 a year. To be fair, it doubled that figure in a letter of 16th November, but even that


doubled figure is substantially less than the £720 which my constituent found was what I may call the commercial rate. More than that, this was at a time before the tourist season began in December, when rents at the equivalent of £180 a month were not exceptional.
At this point, the Barbadian Government offered unfurnished rooms to my constituent in what was a converted barrack block, 200 years old, without proper sanitation. It is not unreasonable that Mr. Spratt refused to accept that accommodation on behalf of his family and himself. Eventually, he was offered a flat at almost double the rent quoted in the letter of 13th July, 1965, to which I have referred. I am truncating my account of the events because we have little time—grateful though I am for the opportunity to raise the matter. On 21st December, 1965, faced with that accommodation difficulty, my constituent left Barbados.
However, this was not his only problem, because the Government of Barbados refused him any overseas allowances until he had signed a further form purporting to be an option for an overseas service aid scheme. My constituent refused to sign the additional form because it contained clauses different from the contract he had already signed.
That was the situation when my constituent came to see me, which I took up with the hon. Gentleman. After considerable correspondence with me he wrote to me on 9th November, 1967, reporting that the Government of Barbados thought that it was my constituent who was in breach of his contract with them. The hon. Gentleman ended his letter as follows:
I regret there is no further action that we can take to assist Mr. Spratt.
That gave me the very clear impression that the Department was washing its hands of the matter.
Subsequently, however, because I make no apology for the fact that I am a rather persistent person, I sought and was most courteously given a personal interview with the hon. Gentleman. I hope that I am not misrepresenting the interview when I say that I think we agreed on three matters.
First, I represented to him that the original advertisement by which the post

was offered was misleading. In a letter to me on 15th February, 1968, the hon. Gentleman conceded that point, although I should add in fairness that he would say that the misleading impression was at least in part corrected by subsequent documents.
Second, I represented to him that my constituent was not sent on a training course suitable for particular reference to Barbados.
Third, I represented to him that it was entirely proper of my constituent not to sign the additional form of option because of the additional clauses it contained, and in the letter of 15th February he agreed that my constituent had not been warned of the sub-standard accommodation which he found, and that he was quite reasonable in not signing the additional contract. Indeed, the hon. Gentleman's letter uses the word "nonsense", that is, it would have been nonsense for my constituent to sign the additional form of contract.
After additional pressure, on 23rd October, 1968, the hon. Gentleman was able to make a payment to my constituent of the disturbance allowance of about £130 to which he would have been entitled had he fully completed his contract. I gratefully acknowledge that that payment has been made, after some pressure.
Had my constituent been enabled to fulfill the whole of his contract with the Government of Barbados, among other things he would, under the terms of the Ministry's letter, have been repaid half the cost of his return fares and half the cost of removing his baggage. I think that that is agreed. The first amounted to £216 and the second to £138, so we are not talking about small sums in relation to the contract. But so far I have totally failed to move the Parliamentary Secretary either into making a payment of those two sums himself or persuading the Government of Barbados to make them.
The hon. Gentleman tells me that there are, broadly, two reasons why he should not do so. First, he says that his Minister was not a party to the agreement between Mr. Spratt and the Government of Barbados. I would urge him to look again at his Ministry's letter of 13th July, 1965. Even if in a strict legal sense the home Government were not a party,


they most assuredly were agents in the matter, as they held themselves out to be. I consider that the home Government have a major responsibility.
Secondly, the hon. Gentleman says that the facts of the determination of the contract by my constituent are in dispute between him and the Government of Barbados. I cannot accept that. The Department accepts from me that the accommodation offered was sub-standard and, therefore, it knows why the contract was determined. It was not wilfully determined; it was not just a change of view or whim which brought my constituent back. He came back because of standard of the accommodation which was offered.
It is surely an important part of the British contribution to the world today that men like my constituent should be encouraged to offer their services abroad, in the same way Mr. Spratt offered his services to the Government of Barbados. I confess that, as a result of this case and another, I am anxious whether, I am sure inadvertently, the Department is not giving a wrong impression to those who are engaged in these contracts through the agency of the Department.
I hope that the Parliamentary Secretary will feel that he should look closely at the whole range of these developments and letters of offer. In this particular case I hope that on reflection he will say that it would be appropriate, no fault lying at the door of my constituent, for an ex gratia repayment to be made in respect of two items to which my constituent unquestionably would have been entitled had he been enabled to complete his contract. I hope that the hon. Gentleman will see the force of these arguments.

4.17 p.m.

The Parliamentary Secretary to the Ministry of Overseas Development (Mr. Albert E. Oram): Before I comment upon the points made by the hon. Member for Wokingham (Mr. van Straubenzee), which were put lucidly and fairly, I will say a word about the long exchanges which he and I have had over the case of Mr. Spratt.
It is two years since the hon. Member first wrote to me on the subject. Since then my right hon. Friend and I have exchanged nearly 30 letters with the hon.

Member. He claimed to be persistent, and I make no complaint.
The hon. Gentleman and I, as he has said, had a meeting about the case last year, and more recently he raised the question in the House. The hon. Member is to be complimented on the persistent and careful attention with which he has advocated his constituent's case, even to the extent of arriving today by the somewhat unorthodox method of helicopter.
The hon. Member may well feel that our exchanges have been more prolonged than he would wish. Three and a half years have passed, and I can well understand his feeling that things have been moving all too slowly.
I would point out that we are concerned in this case, at least potentially, with a legal dispute between Mr. Spratt and the Government of Barbados. It is not just an administrative matter, and I suggest that many legal disputes have been spread over a far longer period, as the hon. Member knows all too well.
I make this point to put the matter in perspective and to indicate the sort of case we are discussing. Mr. Spratt's contract of service was between himself and the Barbados Government, not the Ministry of Overseas Development. If there is a dispute arising out of Mr. Spratt's contract, it is clear who are the parties to the dispute, and where any remedy may lie. I need not dwell further on this point, but I wanted at the outset of my remarks to make this point, because in my mind it is a matter of importance to establish that this is potentially a legal dispute.
It may be helpful, particularly in view of some of the hon. Gentleman's concluding remarks, if I say a few words on the general question of my Ministry's responsibility towards officers recruited from Britain for service with overseas Governments under the Overseas Service Aid Scheme. This is the background against which we must see Mr. Spratt's case. I must emphasise that these officers become public servants of those Governments and the contract they enter into it with them. The fact that the Ministry puts out advertisements, reimburses the employing Government with part of the salary and family expenses, does not affect the relationship between


the officer and his Government. It is important that it should not.
Before entering into an Overseas Aid Scheme Agreement with a country we satisfy ourselves, as far as possible, that adequate safeguards exist to protect the interests of officers designated under the agreement to serve in that country, and before helping with recruitment from Britain, we try to establish that the conditions under which the officers will work will be reasonable. Disputes which arise between the employing Government and its officers must, however, be dealt with through the local machinery for that purpose, although in suitable circumstances, and this case illustrates this, we would ask the local British Government representative to intervene or to use his influence to help an officer in dispute with his employer.
It is an essential part of the agreement that the British Government should not interfere in the relationship between the officer and the employing Government simply because we pay part of his emoluments to induce him to leave his home and work overseas.
The hon. Gentleman made some general remarks on which I would like to comment, about the general responsibility of the Ministry. I recognise that he is concerned that the Ministry should do its utmost to avoid sending people out to jobs overseas which turn out to be very different from their expectations. I entirely share the hon. Gentleman's concern. In passing, he referred to the fact that he had written to me on another case, a case in which I may say our Ministry has a much more tenuous connection that it has in the case of Mr. Spratt. I hope that the hon. Gentleman read my reply to his latest letter on this second case as indicating that we are very far from being complacent.
I hope that the hon. Gentleman will accept my assurance that cases like that of Mr. Spratt are not typical of the many appointments which are handled through my Ministry on behalf of overseas Governments. There are over 10,000 officers serving abroad under the Overseas Service Aid Scheme and similar arrangements. While I would not pretend that problems do not arise from time to time over the conditions of service of some of these 10,000, the great majority receive a square

deal from their employing Governments and recognise this.
I referred earlier to the considerable amount of correspondence which the hon. Gentleman and I have had on the subject of Mr. Spratt's case, but I do not want to give the impression that the Ministry took no interest in Mr. Spratt's affairs until the hon. Gentleman brought them to my notice. This is certainly not the case. Mr. Spratt himself copied to the Ministry of Overseas Development the various representations which he made to the Government of Barbados during his short stay in the island, and the Ministry has throughout done its best to get at the facts and put before the Barbados Government the various representations which Mr. Spratt urged we should bring to their attention.
In doing so the Ministry was acting as a sort of honest broker, and I am sure the hon. Gentleman recognises that this is not always an enviable rôle. I assure the hon. Gentleman that, bulky though it is, his correspondence with myself is far outweighed by the letters and telegrams which the Ministry has exchanged with the Barbados Government on Mr. Spratt's affairs.
So far, I have been talking about the general background and about the manner in which this case has been handled, and I should now summarise the essential facts of the case as I see them. I agree largely with the recital which the hon. Gentleman gave, and he quoted from a number of my letters, which was helpful to our discussion. I am now sticking solely to the bare bones of the case, and I agree that there is a good deal of detail about which discussion could go on.
Very briefly, then, what happened was as follows. Mr. Spratt accepted a three-year appointment as an engineer in the Barbados Government's service, but was dissatisfied with the housing offered by that Government. He therefore threw up the appointment and left Barbados at his own expense less than three months after his arrival. The Barbados Government took the view that under the terms of his contract that action rendered Mr. Spratt liable to pay them the cost of the outward passages to Barbados for himself and his family, together with the equivalent of three months' salary in respect of his unauthorised departure, and


they accordingly claimed some £900 from him.
Concurrently, as the hon. Gentleman said, Mr. Spratt was claiming from the Government of Barbados the amount of the inducement allowance payable to him for the short period he was serving there—a sum of about £130—and, as the hon. Gentleman is aware, these inducement allowances are intended to supplement the local basic salary attaching to a post. The hon. Gentleman recognised in the supplementary question which he asked the other day that the Ministry intervened, and this inducement allowance was ultimately paid for from funds voted by this House.
I want to emphasise that those parts of an expatriate officer's allowance which are ultimately paid for by the British Government are made in the first instance by the overseas Government and subsequently reclaimed by them from the Ministry of Overseas Development. In Mr. Spratt's case we were ultimately able to secure the agreement of the Barbados Government and arrange for his inducement allowance to be paid to him direct by the Ministry.
We felt able to make representation to the Barbados Government on Mr. Spratt's behalf in respect of his inducement allowance because, as we saw it, there was no real dispute as to his entitlement to this allowance. I must also report—and this was the gap in the hon. Gentleman's recital—that the Barbados Government decided in November, 1967, not to press their claim of £900 against Mr. Spratt. This, too, was an important decision, and the hon. Gentleman would be justified in inferring that it was not unconnected with the many communications between my Ministry and Barbados which I mentioned a few moments ago.
The hon. Gentleman is mainly representing that the Ministry should go further and make direct payments to Mr. Spratt in respect of half of his return fare and the fares of his family, and in respect of their baggage, on the ground that these items too are ultimately pay-

able by Britain and not Barbados. The difficulty here is that payment of these items is contingent on the Barbados Government agreeing to pay their share of Mr. Spratt's travel expenses in both directions, and it is precisely this agreement which has not been forthcoming, given the stale of dispute between them and Mr. Spratt.
If I may put it another way, his entitlement to his inducement allowance is contingent solely on his having been in post in Barbados. The same is not true of his travel expenses. Were we to pay half of these, we should in effect be intervening in a contractual dispute between an overseas Government and a former employee. Indeed, we might be held to be passing judgment on the case. I hope that that will help the hon. Member to understand the background to the reply which I gave him on 1st April. I felt that possibly my supplementary answer was not fully comprehensive in the matter.
These, then, are the bare bones of the case as I see them. The hon. Member referred to the circumstances in which the Ministry for Overseas Development acted as recruitment agents for the Government of Barbados and to what he considers to be the moral obligation incumbent on the Ministry to correct what he described as misleading statements made to Mr. Spratt about the housing conditions. With respect, I cannot accept the hon. Members argument. I shall, of course, look again at what he said this afternoon. I pay tribute to his persistence.
I thank the hon. Member for his tribute to the care with which I have examined his representations. I assure him that I have looked at this case very thoroughly indeed, and if I cannot accede to the argument which he has put forward, it is because I believe that to go beyond what we have already done would be an improper course for the Ministry to take.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes to Five o'clock.